MITHILESH KUMAR vs RITA DEVI
- Court
- Jharkhand High Court
[2026:JHHC:32489-DB]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 148 of 2025
Mithilesh Kumar, aged about 50 years, son of Jagdish Prasad, resident
of village-Mandil, P.O.-Mandil, P.S.-Parsabigha, District-Jehanabad
(Bihar), presently residing at Sagar Kunj Niwas, Birsa Chowk, Road
No.3, P.O.-Doranda, P.S.-Jagarnathpur, District-Ranchi, Jharkhand.
… … Plaintiff/Appellant
Versus
Rita Devi, wife of Mithilesh Kumar, daughter of Rajendra Prasad
Verma, resident of E-Block, Sector-5, House No.205, P.O. & P.S.-
Bhuli, District-Dhanbad (Jharkhand).
… … Defendant/Respondent
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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE AKHIL KUMAR
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For the Appellant : Mr. Anurag Kashyap, Advocate
Ms. Kanika Sinha, Advocate
For the Respondent : Mr. Sanjay Prasad, Advocate
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th th
C.A.V. on 29 September, 2026 Pronounced on: 5 November, 2026
Per Sujit Narayan Prasad, J.
1. The instant appeal under Section 19(1) of the Family Court Act, 1984 is
directed against the order/judgment dated 19.03.2025 passed by the
learned Additional Principal Judge, Additional Family Court-I, Ranchi in
Original Suit No. 270 of 2019, whereby and whereunder, the petition filed
under Section 13(1) (1-A) (ii) of the Hindu Marriage Act by the
appellant/appellant seeking a decree of divorce against his wife, has been
dismissed.
2. The brief facts of the case leading to filing of the divorce petition by the
appellant/appellant needs to be referred herein which is as under:
2.1 The case of the appellant is that the marriage of the appellant was
solemnized with the respondent on 11.05.1995 according to Hindu
rites and rituals and since the date of marriage, appellant and the
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respondent started living together as husband and wife at Ranchi and
out of their wedlock couple blessed with two male children, first son
named Ankur Kumar aged 14 years and second son Rohit Kumar
aged about 11 years.
2.2 It has been pleaded that since 2013 because of persuasion of her
parents, respondent started pressurizing the appellant to settle with
her retired old parents at Bhuli, Dhanbad which was not agreeable to
the appellant. It has further been pleaded that on 13.04.2013 all of a
sudden, the respondent left Ranchi along with the children and went
to her parental house at Bhuli and thereafter the appellant tried his
level best to bring her and their children at Ranchi, but at the instance
of parents of respondent, she never agreed to come to Ranchi, rather
she insisted the appellant to get himself settled at Bhuli alongwith
their children and insisted the appellant to provide all the amenities.
2.3 It has further been pleaded that finding no alternative, the appellant
filed a petition before the Principal Judge, Family Court, Ranchi u/s
9 of Hindu marriage Act for restitution of conjugal rights being
M.T.S. No. 197/13 which has already been allowed ex-parte on
11.11.2016.
2.4 Thereafter, the appellant in the month of September 2013 came to
know that respondent has filed one complaint case being case no.
1205/13 before the Court of Ld. C.J.M., Dhanbad against the
appellant u/s 498A, 323, 506 of IPC by levelling false and fabricated
allegation against the appellant.
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2.5 It has been further pleaded that the appellant got shocked and
surprised to know about the filing of complaint case against him and
that too on the basis of false, fabricated and concocted allegations,
thereafter the appellant and his well-wishers including relatives have
tried their level best to convince the respondent and her parents for
bringing the respondent and their children at Ranchi, but she had
been quite adamant. Thereafter, through Mediation JHALSA, Ranchi
in connection with ABA 708/2014 both the parties agreed to live
together along with their children at Ranchi but again the respondent
has taken ‘U’ turn and started putting several conditions.
2.6 It is the case of the appellant that because of the best effort made by
appellant and his well-wishers as per the terms of compromise the
respondent and the younger son namely Rohit Kumar were brought
to Ranchi and appellant re-admitted his son in a School at Ranchi
after payment of more than Rs.10,000/- as admission fee and other
miscellaneous expenses and due to non-cooperative and argument
attitude of respondent, the appellant and his two minor children have
been facing odd and adverse situation.
2.7 It has been pleaded that when the mother of appellant died, he went
to ask the respondent to attend her funeral by coming to his native
village along with the children, but instead of going there she again
came to her father 's house along with their school going son Rohit
who was attending his school regularly and since the matter was
pending before the learned court in which respondent has appeared
and the matter has been compromised/settled hence, there was no
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occasion for the appellant to pursue and file show cause in M.P. Case
no. 104/2014 and respondent agreed to withdraw all the cases filed
by her and she started living with appellant at Ranchi.
2.8 It has been pleaded that on the one hand the respondent has stayed
with appellant after mediation and has agreed to withdraw all the
cases filed by her but on the other hand, she was pursuing M.P. case
no. 104/2014. The appellant has suffered a setback with immense
mental trauma and pain coupled with financial stress but he did not
lose his faith and kept continued spontaneous effect to manage the
respondent to join his company but in vain and finally she left the
appellant and fled away to her parental house along with the children
in August 2015 itself.
2.9 It has been pleaded further that in spite of all the efforts made by
appellant and his well-wishers she has not come to appellant and
decided to live at her parental house for no reason and the respondent
has deserted the appellant without reasonable cause and without
consent and against the wish.
2.10 Hence, the suit for divorce was filed before the learned Family Court
being Original Suit No.270 of 2019, whereby and whereunder, the
petition filed under Section 13(1) (1-A) (ii) of the Hindu Marriage
Act by the appellant/appellant, has been dismissed.
3. The learned Family Judge has called upon the respondent-wife. The wife
has filed written statement and altogether five issues had been framed
which are as follows:
(i) Whether the suit as framed is maintainable?
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(ii) Whether the petitioner has valid cause of action for the suit?
(iii) Whether the restitution of conjugal rights as between the parties
was made after passing of a decree for restitution of conjugal
rights?
(iv) Whether the petitioner is entitled for a decree of divorce on the
ground of desertion?
(v) Whether the petitioner is entitled to get any other relief or reliefs as
prayed for?
4. The evidences have been laid on behalf of both the parties. Thereafter, the
judgment has been passed dismissing the suit by holding that the
petitioner/appellant (appellant herein) has not been able to prove his case
against the respondent even to the extent of preponderance of
probabilities.
Submission of the learned counsel for the appellant/husband:
5. Mr. Anurag Kashyap, learned counsel has contended on behalf of the
appellant/petitioner that the factual aspect which was available before the
learned Family Judge supported by the evidences adduced on behalf of the
appellant/petitioner has not properly been considered and as such, the
judgment impugned is perverse, hence, not sustainable in the eyes of law.
6. It has been submitted that the appellant himself filed an application under
Section 9 of the Hindu Marriage Act which was allowed ex-parte and
after passing of the decree of conjugal rights, the respondent has been
living separately since the year 2017 which itself shows that the
respondent has deserted the appellant for a long period and the same has
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not been taken into consideration in right perspective by the learned
Family Court.
7. Learned counsel for the appellant/petitioner, based upon the aforesaid
ground, has submitted that the judgment impugned suffers from
perversity, as such, not sustainable in the eyes of law.
Submission of the learned counsel for the respondent:
8. Per contra , Mr. Sanjay Prasad, learned counsel for the respondent-wife,
while defending the impugned judgment, has submitted that there is no
error in the impugned judgement. The learned Family Judge has
considered the issue of restitution of conjugal rights and desertion and
having come to the conclusion that no evidence has been adduced to
establish either desertion, has dismissed the petition.
9. It has been submitted that the respondent was subjected to matrimonial
cruelty at the hands of the appellant and his family members for demand
of dowry, hence, she filed a criminal case u/s 498A along with other
sections.
10. It has further been submitted that after the compromise taken place in
between the parties at Mediation Centre at JHALSA in ABA No.708/2014
arising out of C.P. Case No.1205 of 2013, both the parties lived together
but, the respondent was tortured and thrown out of the matrimonial house
along with the minor children, thereafter, she filed a maintenance case
which was allowed.
11. So far as the decree of conjugal rights is concerned, it has been submitted
that the appellant had filed the said case and the same was disposed of ex-
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parte by suppressing the fact of settlement in between the parties in C.P.
Case No.1205 of 2013.
12. It has been further submitted that the respondent is willing to live together
with the appellant but it is due to compelling circumstances that she has to
live separately.
13. Learned counsel, based upon the aforesaid ground, has submitted that if
on that pretext, the factum of desertion has not been found to be
established, based upon which the decree of divorce has been refused to
be granted, the impugned judgment cannot be said to suffer from error.
Analysis:
14. 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.
15. The case has been heard at length. The admitted fact herein is that the suit
for divorce has been filed mainly on the ground of desertion in respect of
the fact that the respondent has chosen not to live together with the
appellant even after passing of the decree of conjugal rights, i.e., by filing
an application under Section 13(1)(1-A)(ii) of the Hindu Marriage Act,
1955.
16. It is evident from the factual aspect that the appellant/petitioner had a
motion by filing a petition under Section 13(1)(1-A)(ii) of the Hindu
Marriage Act, 1955 for decree of divorce on the background of the fact, as
has been pleading in the suit, that after solemnization of the marriage in
between the parties on 11.05.1995, they have been living together and out
of their wedlock two male children took birth.
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17. It has been pleaded that since 2013 because of persuasion of her parents,
respondent started pressurizing the appellant to settle with her retired old
parents at Bhuli, Dhanbad which was not agreeable to the appellant. It has
further been pleaded that on 13.04.2013 all of a sudden, the respondent
left Ranchi along with the children and went to her parental house at
Bhuli, but at the instance of parents of respondent, she never agreed to
come to Ranchi, rather she insisted the appellant to get herself settled at
Bhuli alongwith their children and insisted the appellant to provide all the
amenities.
18. It has further been pleaded that the appellant filed a petition before the
Principal Judge, Family Court, Ranchi u/s 9 of Hindu marriage Act for
restitution of conjugal rights being M.T.S. No. 197/13 which has been
allowed ex-parte on 11.11.2016. Thereafter, the appellant in the month of
September 2013 came to know that respondent has filed one complaint
case being case no. 1205/13 before the Court of Ld. C.J.M., Dhanbad
against the appellant u/s 498A, 323, 506 of IPC.
19. Thereafter, through the Mediation Centre at JHALSA, Ranchi is
connection with A.B.A. 708/2014 both the parties agreed to live together
along with their children at Ranchi but again the respondent has taken ‘U’
turn and started putting several conditions.
20. It is the case of the appellant that because of the best effort made by
appellant and his well-wishers as per the terms of compromise the
respondent and the younger son namely Rohit Kumar were brought to
Ranchi and appellant re-admitted his son in a School at Ranchi after
payment of more than Rs.10,000/- as admission fee and other
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miscellaneous expenses and due to non-cooperative and argument attitude
of respondent, the appellant and his two minor children have been facing
odd and adverse situation.
21. It has been pleaded that when the mother of appellant died, he went to ask
the respondent to attend her funeral by coming to his native village along
with the children, but instead of going there she again came to her father 's
house along with their school going son and since the matter was pending
before the learned court in which respondent has appeared and the matter
has been compromised/settled hence, there was no occasion for the
appellant to pursue and file show cause in M.P. Case no. 104/2014 and
respondent agreed to withdraw all the cases filed by her and she started
living with appellant at Ranchi.
22. It has been pleaded that on the one hand the respondent has stayed with
appellant after mediation and has agreed to withdraw all the cases filed by
her but on the other hand, she was pursuing M.P. case no. 104/2014.
23. It has been pleaded further that in spite of all the efforts made by appellant
and his well-wishers she has not come to appellant and decided to live at
her parental house for no reason and the respondent has deserted the
appellant without reasonable cause and without consent and against the
wish.
24. Written statement was filed by the respondent/wife wherein all allegation
has been refuted and accordingly, issues have been framed wherein
primarily issue nos.3 and 4 pertains to whether the restitution of conjugal
rights as between the parties was made after passing of a decree for
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restitution of conjugal rights and on the ground of desertion whether
petitioner entitled for divorced, respectively.
25. The evidence has been led on behalf of both the parties. For ready
reference, the evidence led on behalf of the appellant/petitioner is being
referred as under:
(i) P.W.-1 is the appellant himself and has stated that he is the
appellant in the suit and his marriage was solemnized with
respondent on 11.05.1995 according to Hindu rites and rituals at
Jehanabad and after marriage respondent started living with him in
Ranchi. He has stated that out of their wedlock two sons were born
namely Ankur Kumar aged about 17 years and Rohit Kumar aged
about 14 years. He has stated that from the year 2013 respondent, at
the behest of her parents started pressurizing him to live with her
old aged retired parents in Bhuli, which was not acceptable to him.
He has stated that suddenly on 13.04.2013 at the behest of her
parents, respondent went to Bhuli along with both their children and
in spite of his repeated persuasion, she did not agree to come to
Ranchi and on the contrary, respondent started pressurizing him to
come and live in Bhuli and bear all the expenses, since he had no
other remedy, had to file MTS 197/2013 in Family Court for
restitution of conjugal rights, which was allowed in his favour on
11.11.2016. He has stated that respondent made up a false and
fabricated story against him and filed a C.P Case No. 1205/2013 u/s
498A, 323 and 506 IPC in the court of Ld. Chief Judicial
Magistrate, Dhanbad and thereafter he and his relatives and well-
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wishers tried hard to convince the respondent to come and stay with
him in Ranchi along with their children but the respondent
remained adamant on staying in Dhanbad. He has stated that during
the hearing of ABA No. 708/2014 during the mediation in
JHALSA, the respondent agreed live with him but later on the
respondent refused to live with him and after much persuasion by
him and his well-wishers, the respondent agreed to stay with him in
Ranchi along with his younger son Rohit and he got Rohit admitted
in the school by paying Rs.10,000/- as school admission fee and
other expenses and due to non-cooperation attitude of respondent,
he and his children are facing a lot of trouble. He has stated that
when his mother passed away in her native village, they all went to
her native village for her last rites but from there respondent came
to Ranchi, got Rohit Kumar out of school and went to her maternal
home. He has stated that since a settlement was reached in M.P.
Case No. 104/2014 and the respondent promised to withdraw all the
cases, therefore he did not file his reply in said case whereas he is
fully complying with the order of this Ld. Court and regularly
paying Rs.16,000/- per month including Rs.10,000/- as previous
dues to the respondent which is directly deducted from his salary
and transferred to the bank account of the respondent and after the
mediation respondent had agreed that she would withdraw all the
cases but in spite of that she continued to pursue M.P. Case
No.104/2014. He always tried to get the respondent to come and
stay with him but there was no positive result and ultimately in
August, 2015 respondent went to her parental house with their
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children. He has stated that respondent has not complied with the
decision of the learned court passed in the original case MTS
No.197/2013 dated 11.11.2016 and till date she did not come to his
house and she is living separately from him in Dhanbad for more
than 7 years without any valid reason. He has stated that respondent
does not want to live with him without any valid reason and due to
the attitude of respondent, restoration of marital life is no longer
possible and prayed to dissolve his marriage.
In his cross examination he has stated that after marriage
they lived together at Ranchi for two years and thereafter
respondent started living at her maika. He has stated that respondent
filed a case of dowry harassment against him in the year 2013 and
compromise took place and he was granted bail by the High Court
and in the settlement, it was agreed that he would keep his wife
peacefully. After that, the respondent came and lived whole day and
at 10:00 pm in the night she went to Dhanbad by Pataliputra express
train. He has stated that he had filed M.TS. Case No. 197/2013 for
restitution of conjugal right in which ex-parte order was passed in
his favour. He has stated that respondent had filed a maintenance
case in the year 2014 in Dhanbad in which order was passed
directing him to pay Rs. 6,000/- per month as maintenance to the
respondent. The High Court has been pleased to dismiss his
application and thereafter from 2021, he started giving maintenance
to the respondent He has not solemnized second marriage and after
marriage he lived with his wife for 17-18 years.
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(ii) P.W.2, Anuradha Ranjan has supported the case of appellant in her
examination in chief and has stated more or less the similar version
as stated by appellant in his evidence. On repeated call no one turn
up to cross examine this witness.
26. The respondent-wife has also been examined as D.W.-1. For ready
reference, her evidence is being referred as under:
(i) D.W.-1 , Rita Devi who is respondent herself has stated in her
affidavited examination-in-chief that the respondent is the legally
wedded wife of appellant and their marriage was solemnized on
11.09.1995 at Jehanabad and out of the said wedlock two male
children were born namely Ankur Kumar now aged about 15 years
and one Rohit Kumar aged about 12 years, after few years of
marriage physical assault and torture was started by appellant upon
respondent for non-fulfillment of dowry demands then respondent
had also filed a complaint case in the court of C.J.M., Dhanbad,
against the appellant being C.P. Case no. 1205/2013 u/s 498 (A),
323, 506 of I.P.C for the assault and ousting of the respondent from
her matrimonial house on the non-fulfillment of the illegal demands
of the appellant. The respondent was driven out of her matrimonial
house with their two sons in the year 2013 by the appellant and
thereafter she had taken shelter at the house of her retired old father
at Dhanbad. She has stated that during the pendency of C.P. Case
no.1205/2013, compromise took place at the mediation Centre,
JHALSA on 24.06.15 in A.B.A. no. 708/14 and in accordance with
the compromise, the respondent went to her matrimonial house but
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again assault and torture was repeated by the appellant and only
after few days the respondent was ousted from her matrimonial
house at the mercy of her old father at Dhanbad. The only intention
of the appellant for entering into a settlement at the mediation
centre was to obtain the Anticipatory bail, by misleading the High
Court in the garb of mediation. Since the respondent was again
ousted from her matrimonial house by appellant with their two
minor kids after obtaining anticipatory bail from the High Court
then she had taken shelter at her old father house at Dhanbad but
since she had no source of income to fulfill the basic need of herself
and her two kids and the situation was near to starve for herself and
both the children, the respondent for her survival had filed a
Maintenance Petition No.104 of 2014 u/s 125 Cr.P.C. before the
Court of Principal Judge, Family Court, Dhanbad for getting a
monthly maintenance allowance from the appellant wherein the
learned family Court at Dhanbad, after considering the
circumvolving facts and circumstances of the case, passed an
appropriate order of maintenance to the respondent vide order dated
10.06.2016 in M.P. no. 104/2014, whereby and where under, he has
been pleased to allow the maintenance of Rs.4,000/- per month
from the date of application i.e. on 01.04.2014, payable to petitioner
wife and further Rs.1,000/- to each son till they attain majority. She
has stated that respondent in her evidence before the learned Family
Court in Maintenance Petition No. 104 of 2014, has narrated the
entire story of assault, torture and further ousting her from the
matrimonial house twice by the appellant. The appellant had
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challenged the order of maintenance at Jharkhand High Court in Cr.
Rev. No. 1043 of 2016, which was dismissed vide order dated
01.07.2020 and on her identification copy of order of said Cr. Rev.
No. 1043/2016 has been marked "X" for identification. She has
stated that nevertheless the harassment of the respondent did not
end here. The appellant has filed the present Divorce petition before
this learned Court making false allegation upon the respondent.
That the very Divorce petition indicates the intention of the
appellant in releasing himself from all kind of family
responsibilities and live a liability free life. He has stated that there
is no cruelty made out against the appellant rather the appellant has
several criminal antecedents to show the cruelty being made on the
respondent on several occasions with frivolous allegations to seek
divorce from the respondent. The respondent is victim in the hands
of the appellant throughout her matrimonial life and till date. The
appellant has never given respect and love to the respondent as his
wife and broken all sacred bonding of marriage and the respondent
wife has remained a silent victim in this relationship. However, the
respondent has all the respect for this sacred relationship and would
never want to break the same. The respondent has always tried her
best to keep the appellant happy in this matrimonial relationship but
the greedy and cruel nature of the appellant never made this
matrimonial relationship grow in peace and always tried to disturb
and exploit the respondent and thus this application has no merit
and has only been filed to satisfy the ego of the appellant and to
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harass the respondent and two minor children in multiplicity of
litigations.
In her cross examination she has stated that her marriage
was solemnized with Mithilesh Kumar with consent of her parents
at Jehanabad and at the time of marriage her father was working in
BCCL at Dhanbad and she was living with her parents at BCCL
colony at Dhanbad. After marriage she lived in her Sasural first
time for six months and after that she went to her maika and after
1½ months she again came to her Sasural and thereafter she does
not remember when she visited her maika but it was continued. She
has stated that their both the sons were born at Dhanbad at her
maika. Her father has retired in the year 2014 and presently she is
living with her father in quarter at Dhanbad. She wants to live with
her husband but he used to assault her. She has stated that presently
her husband is working in Railway and he joined in the year 2009
and after joining of her husband she lived with him for 3-4 years
with him. She has not complained regarding assault to her at any
police station and since 2015 till today she has not tried to meet
with her husband or live with him. She is getting maintenance
Rs.16,000/- per month and she has never come to Ranchi to settle
with Mithilesh. She has denied that in the year 2013 she left her
husband and went to her maika without any reason. She has not
gone at last rituals of her mother-in-law. She has stated that during
pendency of maintenance case as well as complaint case
no.1205/2013 no compromise between them took place. She has
stated that during course of hearing of ABA No. 708/2014
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compromise took place between them at JHALSA where her
husband has agreed to keep her and their children peacefully and on
the basis of compromise, she went to her Sasural with her younger
son where admission of her younger son was made in the school
and she does not know what expenses was incurred at the time of
admission. She does not know at present where her husband is
posted. Her father-in-law died in the year 2013 and she did not go at
the time of his last rituals and when her father-in-law died at that
time complaint case was pending. She wants to live with her
husband. She has denied that she does not want to fulfill her
matrimonial obligation with her husband. Her elder son is studying
and he is not doing any work. She wants to live with her husband
but there is threat of her life and life of their children. She is living
separately from her husband since 2013. She is getting maintenance
of Rs. 16,000/- per month (Rs. 6,000/- for herself and Rs. 10,000/-
for her children).
27. The learned Family Judge after assessing the evidences led on behalf of
the parties as also the submission made in the pleading, i.e., plaint and
written statement, has found that the appellant has not been able to prove
the case against the respondent even to the extent of preponderance of
probabilities and accordingly dismissed the said suit against which the
present appeal has been filed.
28. The learned counsel for the appellant/petitioner has argued that the
evidence put forth before the learned Family Court has not properly been
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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 has submitted that the judgment is well considered one and
merely by committing fraud, the suit for divorce has been filed.
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. 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
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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.)
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.
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“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.””
31. Thus, from the aforesaid, it is evident that any order said to be perverse if
a finding of fact is arrived at by ignoring or excluding relevant material or
by taking into consideration irrelevant material or if the finding so
outrageously defies logic as to suffer from the vice of irrationality.
32. Thus, "perversity" refers to a finding or decision so unreasonable or
irrational that no reasonable person acting judicially could have reached it.
It signifies a gross and unreasonable assessment of evidence or law by a
court.
33. Further Perversity is a high threshold for intervention, distinguishing it
from a mere error of fact or law. The "safest approach on perversity is the
classic approach on the reasonable man's inference on the facts but
inadequacy of evidence or a different reading of evidence is not
perversity, reference in this regard be made to the judgment rendered by
the Hon'ble Apex Court in the case of Damodar Lal v. Sohan Devi,
(2016) 14 SCC 197.
34. It needs to refer herein that since appellate jurisdiction has been invoked
herein, therefore, before entering into merit of the case, at this juncture it
would be purposeful to discuss the appellate jurisdiction of the High
Court.
35. It needs to refer herein that under section 7 of the Family Courts Act, the
Family Court shall have and exercise all the jurisdiction exercisable by
any District Court or any Sub- ordinate Civil Court under any law for the
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time being in force in respect of suits and proceedings of the nature which
are described in the explanation to section 7(1).
36. Sub-section (1) to section 19 of the Family Courts Act provides that an
appeal shall lie from every judgment or order not being an interlocutory
order of a Family Court to the High Court "both on facts and on law".
section 19 section 96
Therefore, of the Family Courts Act is parallel to of the
Code of Civil Procedure, the scope of which has been dealt with by the
Hon'ble Apex Court in series of judgments.
37. The law is well settled that the High Court in a First Appeal can examine
every question of law and fact which arises in the facts of the case and has
powers to affirm, reverse or modify the judgment under question. In
"Jagdish Singh v. Madhuri Devi" (2008) 10 SCC 497 the Hon'ble
Supreme Court observed that it is lawful for the High Court acting as the
First Appellate Court to enter into not only questions of law but questions
of fact as well and the appellate Court therefore can reappraise,
reappreciate and review the entire evidence and can come to its own
conclusion. For ready reference the relevant paragraph of the said
judgment is being quoted as under:
“It is no doubt true that the High Court was exercising power
as the first appellate court and hence it was open to the Court to
enter into not only questions of law but questions of fact as well.
It is settled law that an appeal is a continuation of suit. An
appeal thus is a rehearing of the main matter and the appellate
court can reappraise, reappreciate and review the entire
evidence--oral as well as documentary--and can come to its own
conclusion.”
section 3
38. Further, it needs to refer herein that under of the Indian Evidence
Act a fact is said to be proved when the Court either believes it to exist or
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considers its existence so probable that a prudent man under the
circumstances would proceed on the supposition that such fact really
exists. Therefore, the normal rule of preponderance of probability is the
rule which governs the civil proceedings like this.
39. The expression "preponderance of probability" is not capable of exact
definition nor can there be any strait-jacket formula or a weighing
machine to find out which side the balance is tilted. The preponderance of
probability would imply a positive element about possibility of existence
of a fact. This means a higher degree of probability of happening of
something and existence of a fact.
40. In " A. Jayachandra v. Aneel Kaur" (2005) 2 SCC 22 the Hon'ble Apex
Court has observed that the concept, a proof beyond the shadow of doubt,
is to be applied to criminal trials and not to civil matters and certainly not
to matters of such delicate personal relationship as those of husband and
wife.
41. Since this Court is exercising the power of appeal as referred hereinabove
and as per the settled position of law which require the consideration of
the appellate Court is that the order/judgment passed by the appropriate
Forum, if suffers from perversity, the same is to be taken as a ground for
its reversal.
42. It is an admitted position that the appellant has preferred the suit for
dissolution of marriage under Section 13(1-A) (ii) of the Hindu Marriage
Act, 1955, asserting that the decree for restitution of conjugal rights,
passed earlier, has not complied with by the respondent-wife.
43. In order to appreciate the aforesaid ground, it would be apt to refer herein
the Section 13(1-A) (ii) of the Hindu Marriage Act, 1955:
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((1A)Either party to a marriage, whether solemnised before or
after the commencement of this Act, may also present a petition
for the dissolution of the marriage by a decree of divorce on the
ground
--------
(ii)that there has been no restitution of conjugal rights as
between the parties to the marriage for a period of [one year or
upwards after the passing of a decree for restitution of conjugal
rights in a proceeding to which they were parties.]”
44. Thus, from the aforesaid it is evident that Section 13(1-A)(ii) of the Hindu
Marriage Act, 1955 confers an independent right upon either spouse to
seek dissolution of marriage by a decree of divorce where, despite the
passing of a decree for restitution of conjugal rights, there has been no
resumption of cohabitation between the parties for a continuous period of
one year or more thereafter. The legislative intent behind the provision is
that when a decree for restitution of conjugal rights fails to achieve its
object of restoring matrimonial harmony and the parties continue to live
separately even after the decree, the marriage may be treated as having
irretrievably broken down in substance. The continued non-restoration of
conjugal relations for the statutory period constitutes a valid ground for
seeking divorce, irrespective of which party had initially obtained the
decree for restitution of conjugal rights.
45. Thus, Section 13 (1A) (ii) of the Act 1955, provides that in case there is
no restitution of conjugal rights despite a Decree under section 9 of Act
1955 for a period of one year, either party can seek dissolution of
marriage.
46. In the backdrop of the aforesaid factual and legal circumstances, this
Court has carefully examined the impugned judgment and decree passed
by the learned Family Court in order to ascertain whether the findings
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recorded therein suffer from perversity, arbitrariness, or any patent
illegality warranting interference in the exercise of appellate jurisdiction.
47. Admittedly, the respondent is the legally wedded wife of the appellant,
and their marriage was solemnized on 11.05.1995 at Jehanabad, Bihar, in
accordance with Hindu rites and customs. It is also an admitted position
that out of the said wedlock, two sons were born, both of whom are
presently residing with the respondent-mother.
48. The evidence adduced by the respective parties reveals that the appellant
had instituted a petition under Section 9 of the Hindu Marriage Act, 1955,
being M.T.S. No. 197 of 2013, before the Family Court at Ranchi, seeking
restitution of conjugal rights. The said proceeding ultimately culminated
in an ex parte decree in favour of the appellant on 11.11.2016.
49. The records further disclose that the respondent-wife had instituted
Complaint Case No. 1205 of 2013 under Section 498A of the Indian Penal
Code and allied provisions against the appellant. In connection therewith,
the appellant had preferred A.B.A. No. 708 of 2014 before this Court
seeking anticipatory bail. During the pendency of the said proceeding, the
dispute between the parties was referred to the Mediation Centre,
JHALSA, where an amicable settlement was arrived at and both parties
agreed to resume cohabitation along with their children. It is the case of
the appellant that only after considerable persuasion by him and his family
members, the respondent, along with their younger son, came to Ranchi,
whereupon he secured the admission of the child in a school.
50. It is the further case of the appellant that, during the aforesaid period, his
mother passed away at their native village. The appellant proceeded to
attend her funeral rites and requested the respondent to accompany him
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with their children. However, instead of attending the funeral of her
mother-in-law, the respondent allegedly left for her parental home along
with the children without informing the appellant.
51. Per contra , the respondent has asserted that the settlement before the
Mediation Centre, JHALSA, was entered into by the appellant only with a
view to securing anticipatory bail and that, after she returned to her
matrimonial home pursuant thereto, she was once again subjected to
torture and humiliation. According to her, being left with no alternative,
she returned to her parental home along with her minor children and, with
the assistance of her aged retired father, pursued Maintenance Petition
No.104 of 2014 under Section 125 Cr.P.C. before the Principal Judge,
Family Court, Dhanbad. The said proceeding was allowed vide order
dated 10.06.2016, whereby the appellant was directed to pay maintenance
of Rs.6,000/- per month to the respondent and their children.
52. It is evident from record that the appellant had challenged the order passed
in the maintenance proceeding by filing Criminal Revision No. 1043 of
2016 before this Court, which came to be dismissed on 01.07.2020 and
only after dismissal of the said revision petition, the appellant commenced
payment of maintenance to the respondent and the children. Thus, from
the aforesaid factual aspect it is apparent that such conduct reflects the
appellant's lack of concern towards the maintenance and educational needs
of his wife and children.
53. It is evident from record that although M.T.S. No. 197 of 2013 was
decreed ex-parte on 11.11.2016, the suit before the learned Family Court
for dissolution of marriage had been instituted by the appellant on
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29.04.2019, i.e., after a lapse of more than two and a half years from the
date of the decree.
54. Further it is evident from the impugned judgment that the learned Family
Court has also noted the aforesaid factual aspect while passing the
impugned judgment and has observed that no material was brought on
record by the appellant to demonstrate that he had taken any steps
whatsoever to execute or enforce the decree for restitution of conjugal
rights with a bona fide intention of restoring matrimonial cohabitation
with the respondent.
55. It needs to refer herein that the judgment rendered in M.T.S. No. 197 of
2013 does not reflect any disclosure by the appellant regarding the
settlement arrived at before the Mediation Centre, JHALSA, or the fact
that the parties had resided together for a certain period during the
pendency of the said proceeding.
56. On the other hand, the respondent, in her oral testimony before the learned
Family Court, categorically asserted that she had no knowledge of the ex
parte judgment and decree passed in M.T.S. No. 197 of 2013.
57. The learned family Court has taken into consideration the aforesaid
factual aspect also and has observed that there was no material on record
to establish that the respondent had ever been made aware of the said
decree, nor had the appellant produced any documentary evidence to
prove such knowledge on her part.
58. Further from the impugned judgment it is evident that the respondent, in
clear and unequivocal terms, stated in her deposition that she is willing to
reside with the appellant.
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59. The aforesaid factual aspect led the learned Family Court, to drew an
inference that the respondent's separate residence was neither deliberate
nor motivated by an intention to permanently terminate cohabitation.
Rather, such separation was held to be a consequence of compelling
circumstances arising out of prolonged matrimonial discord and
continuous litigation between the parties, which had rendered their
relationship strained and non-cordial.
60. It is evident from perusal of the impugned judgment that the learned
Family Court based upon the aforesaid circumstances has concluded that
the appellant (petitioner therein) failed to adduce any cogent and
trustworthy evidence to establish that the respondent-wife, despite having
knowledge of the judgment and decree passed in M.T.S. No. 197 of 2013,
had wilfully refused to resume matrimonial life with him. In the absence
of any such evidence, the allegation that the respondent had deliberately
declined to comply with the decree for restitution of conjugal rights was
held to be unsubstantiated.
61. Thus, based upon the discussion made hereinabove, this Court, is of the
considered view, that the appellant has not adduced any cogent and
reliable evidence that the respondent-wife had not resumed her conjugal
life with the appellant despite knowing about the judgement and decree
passed in M.T.S. No. 197/2013.
62. Further, in the facts of the present case, although the factum of separation
between the parties stands established, the appellant has failed to prove
that the respondent had the requisite intention to bring matrimonial
cohabitation permanently to an end. The evidence available on record
does not disclose the existence of animus deserendi on the part of the
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respondent. Rather, the materials on record, including her categorical
assertion expressing willingness to reside with the appellant, indicate that
her separate residence was not driven by an intention to forsake the
marital relationship permanently, but was a consequence of the prevailing
circumstances. As such, one of the essential ingredients constituting
desertion remains unproved, and the plea of desertion advanced by the
appellant cannot be said to have been established in accordance with law.
63. This Court, based upon the aforesaid discussion, is of the view that the
appellant/petitioner has failed to establish the element of perversity in the
impugned judgment as per the discussion made hereinabove, as such, the
instant appeal deserves to be dismissed.
64. Accordingly, the instant appeal fails and is dismissed.
65. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I agree,
(Akhil Kumar, J.) (Akhil Kumar, J.)
th
5 November, 2026
Saurabh
/
A.F.R.
Uploaded on 05.11.2026
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