Divorce on cruelty and desertion refused — Patna High Court, 2023

Case Background

The case arose from a matrimonial dispute between a wife working as a lady constable in Bihar Police and her husband, a resident of Katihar district. Their marriage was solemnised according to Hindu rites on 25.09.1998. After marriage, the wife started living at the matrimonial home. At the time of marriage, according to the wife, lavish gifts and cash of ₹1.5 lakhs were given towards marriage expenses.

The couple’s early married life was cordial and two sons, Priyansu Kumar and Saket Kumar, were born out of the wedlock. At the time of filing the divorce petition before the Family Court in 2013, the boys were around 12 and 10 years old.

The wife later joined the District Police as a constable on a monthly salary and was allotted a government quarter. Over time, serious disputes arose between the spouses, leading to separation. The two minor sons remained with the father. The wife alleged that they were being ill-treated and that she would be a better guardian.

In 2013, the wife filed Matrimonial (Divorce) Case No. 413 of 2013 before the Additional Principal Judge, Family Court, Katihar, under Section 13(1)(i-b) of the Hindu Marriage Act, 1955. She sought a decree of divorce and custody of the two minor sons. The husband contested the case.

On 12.01.2017, the Family Court dismissed the divorce petition on contest and refused to grant custody to the wife. Aggrieved, she filed Miscellaneous Appeal No. 114 of 2017 before the Patna High Court. The appeal was heard by a Division Bench comprising Hon’ble Mr. Justice P. B. Bajanthri and Hon’ble Mr. Justice Jitendra Kumar. Judgment was delivered on 25.08.2023.

What the Court Examined and Decided

The wife’s core allegations were that after the birth of the younger son, the husband developed intimacy with another village woman and started living an adulterous life. She further alleged that the husband and his relatives continuously complained about inadequate dowry and ornaments, subjected her to physical and mental cruelty, and eventually drove her out of the matrimonial home while keeping her belongings and jewellery.

She also claimed that after she joined the police, her husband used to visit her place of posting at the end of every month and forcibly take away her salary under threat and coercion, leaving her hand-to-mouth. She asserted that both minor sons, though living with the husband, were being ill-treated and that she, having a government quarter and a regular income, could better look after their academic life and welfare. Because of alleged ill-treatment, she lodged Complaint Case No. 203 of 2013 under Section 498A of the Indian Penal Code before the learned SDJM, Katihar.

The husband, in his written statement, admitted the marriage and the birth of the two sons but denied all allegations of dowry demand, cruelty and adultery. He stated that their matrimonial life had been harmonious for about 15–16 years. According to him, he had helped the wife study, pass the matriculation examination and get selected as a constable in Bihar Police. He alleged that after she became financially independent, her behaviour changed, she developed disregard for him and his family and stopped caring for the children. He said she had filed a false criminal case only to build a ground for divorce.

The Family Court framed seven issues, including maintainability of the suit, existence of cause of action, whether the wife had reasonable excuse to leave the husband’s company, whether she was subjected to dowry-related cruelty, her entitlement to custody of the two sons, and whether she was entitled to a decree of divorce and other reliefs.

In evidence, the wife examined herself as P.W.-1, her mother (P.W.-2), her father (P.W.-3), and one acquaintance (P.W.-4). They broadly repeated the allegations in the petition, but no documentary evidence was produced. In cross-examination, the wife admitted that she had been taking care of the children along with her husband earlier, and that the first and second sons were born about two and four years after marriage respectively. She stated that she did not want to live with the husband because he used to beat her and confirmed filing of a 498A case.

The mother (P.W.-2) deposed that the wife got selected in Bihar Police in 2007, her first posting was at Supaul, and for some time the children stayed with her there. She accepted that both children were now living with their father and that she did not know the identity of the woman with whom the husband was alleged to have an illicit relationship.

The father (P.W.-3) and P.W.-4 simply supported the wife’s version in a general manner without specific details.

The husband examined four defence witnesses: the two sons as D.W.-1 and D.W.-2, a villager D.W.-3, and himself as D.W.-4. No documents were filed by the husband either.

D.W.-1 Saket Kumar, the elder son, stated that his mother had ousted him and his brother and that they had been living with their father since. He deposed that after his mother got the government job, her behaviour towards them and the father changed, she began to look down on them, tortured them, and ultimately separated herself on false allegations. He stated that his father had no landed property and survived on labour work, while his mother earned about ₹30,000 per month. Saket said that his father lovingly took care of both sons and met their educational expenses. He felt that if his mother obtained divorce, they would become orphaned and their future would be ruined.

D.W.-2 Priyanshu Kumar, the younger son, supported his brother’s testimony. He said that his mother earned around ₹30,000 per month whereas his father was unemployed and gave tuitions. He stated that even if his mother agreed to keep him, he would refuse to go because her nature and behaviour were “very bad” and further alleged that his mother was living with someone else.

D.W.-3, a villager acquainted with both parties, broadly supported the husband’s stand as in the written statement. D.W.-4, the husband, reiterated that the marriage had been mostly cordial for 15–16 years, that he had helped the wife become educated and employed, and that he wanted her to return. He admitted that he had not filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. He confirmed that after the wife’s appointment in March 2007, he and the children stayed with her in the government quarter for about two years and that she later stopped allowing them to live with her.

On appeal, the Patna High Court first examined whether the wife had a “cause of action” and whether the divorce petition was maintainable. The Family Court had held that the petition lacked cause of action and was not maintainable. The High Court disagreed.

Relying on Supreme Court decisions such as Mayar (H.K.) Ltd. v. Vessel M.V. Fortune, I.T.C. Ltd. v. Debts Recovery Appellate Tribunal, and T. Arivandandam v. T.V. Satyapal, the High Court explained that “cause of action” is a bundle of essential facts that must be proved for relief and that it is assessed only from the plaintiff’s pleadings. Since the wife’s petition clearly pleaded cruelty, desertion and claim for custody, she did have a cause of action. The confusion of the Family Court, according to the High Court, came from mixing up “cause of action” with proof of allegations.

Similarly, on maintainability, the High Court clarified that a suit is maintainable unless it attracts grounds for return or rejection of plaint under Order VII Rules 10 and 11 CPC. As the wife’s petition did not fall under any such ground, it was very much maintainable. On these two preliminary points, the High Court decided in favour of the wife.

The Bench then turned to the core questions: whether cruelty or desertion, as legal grounds for divorce under Section 13 of the Hindu Marriage Act, had been proved. The judgment undertook a detailed survey of Supreme Court and High Court decisions explaining “cruelty” and “desertion” in matrimonial law and emphasised that:

• the burden of proof lies on the petitioner, and
• the standard of proof is “preponderance of probabilities”, not “beyond reasonable doubt”.

Applying these principles, the Court noted that the wife’s allegations of cruelty were “omnibus and general”, with no specific dates, places or concrete incidents. Though she alleged physical beating, dowry demands, adultery and forcible taking of salary, she provided no detailed or corroborated instances. The complaint case under Section 498A IPC was still pending and thus not a concluded finding.

The Court highlighted that the marriage had continued peacefully for a long period, that the wife obtained government service in 2007, and that the couple lived together with their children in the government quarter for about two years without any specific pleaded instance of cruelty. After 2009, they largely lived separately because of her postings, and she did not permit the husband and children to stay with her. In this backdrop, the Court found it improbable that the husband would have had much opportunity to commit the serious cruelty alleged during this period.

The testimonies of the two sons, who directly contradicted their mother’s allegations and spoke of her changed behaviour and neglect after she became employed, were given considerable weight. Taking the evidence as a whole, the Bench held that no act of the husband had been proved which was so grave and weighty as to create a reasonable apprehension in the mind of the wife that it was unsafe to continue the marriage. Ordinary wear and tear or normal quarrels could not amount to cruelty under Section 13(1)(ia). Therefore, the ground of cruelty failed.

On desertion under Section 13(1)(ib), the Court relied on authorities like Bipinchandra Jaisinghbai Shah v. Prabhavati, Lachman Utamchand Kirpalani v. Meena, Savitri Pandey v. Prem Chandra Pandey, and Debananda Tamuli v. Kakumoni Kataky. It reiterated that desertion requires both:

• factum of separation, and
• animus deserendi — intention to permanently end cohabitation — on the part of the deserting spouse, along with absence of consent and reasonable cause on the side of the deserted spouse.

The wife had pleaded that she was ousted due to dowry-related cruelty. However, in evidence she did not specify when the husband allegedly abandoned her, or how long any such desertion continued. On the contrary, the husband consistently expressed his willingness to live with her, while blaming her for wanting to separate after achieving financial independence.

The High Court noted that the wife had not filed any petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, which would have supported her claim of being deserted without fault on her part. In the absence of clear pleadings and proof of sustained abandonment with animus deserendi, the ground of desertion too was held to be not proved.

Regarding custody of the children, the Court took note of the fact that when the suit was filed in 2013, the boys were minors, but by the time of the High Court’s judgment in 2023 they had become majors — aged about 22 and 20. Since custody disputes under the Guardians and Wards Act and the Hindu Minority and Guardianship Act relate only to minors, the question of custody had become infructuous. As majors, the sons were free to decide where and with whom they would live.

In conclusion, although the High Court corrected the Family Court’s error on “cause of action” and “maintainability”, it agreed with the ultimate result. The wife had not established cruelty or desertion on a preponderance of probabilities, and the custody claim no longer survived. The appeal was therefore dismissed, the Family Court’s dismissal of the matrimonial case was upheld, and both parties were left to bear their own costs. The Registrar General was directed to circulate the judgment among all Family Court presiding officers and to send a copy to the Director, Bihar Judicial Academy.

Why This Judgment Matters

This decision is important for anyone thinking of filing for divorce in Bihar, especially on grounds of cruelty or desertion. The Patna High Court made it clear that simply writing strong allegations in a petition is not enough. The spouse asking for divorce must bring clear, specific facts and believable evidence.

The judgment also clarifies that a divorce case can be perfectly “maintainable” even if the petitioner ultimately loses on evidence. This protects genuine litigants whose cases may be weak but are not legally barred.

For working spouses, particularly those in government service, the case shows that a change in financial status alone cannot justify breaking the marriage. Courts will look at the entire conduct of both partners, including how children are treated and what they say.

Finally, in custody matters, the Court reminded that once children become adults, neither parent can claim legal custody. Adult sons and daughters have the right to choose where and with whom they will live.

Legal Issues and Answers

• Issue: Did the wife have a valid cause of action and was her divorce petition maintainable before the Family Court?
  Answer: Yes. The Patna High Court held that her pleadings disclosed cause of action and the petition did not attract any ground for rejection or return under Order VII Rules 10 and 11 CPC.
• Issue: Did the wife prove cruelty by the husband sufficient for divorce under Section 13(1)(ia) of the Hindu Marriage Act?
  Answer: No. The Court found the allegations general and unsubstantiated, with no specific instances proved. The evidence, including that of the sons, did not show grave or weighty misconduct by the husband.
• Issue: Did the wife prove desertion by the husband under Section 13(1)(ib) of the Hindu Marriage Act?
  Answer: No. There was no clear pleading or proof of the husband abandoning her with intention to permanently end cohabitation. The husband expressed willingness to continue the marriage, and the wife had not sought restitution of conjugal rights.
• Issue: Was the wife entitled to custody of the two sons?
  Answer: No. By the time of the High Court’s decision, both sons had attained majority, making the custody claim infructuous. Adult children are free to choose where to live.

Cases Cited by the Court

• Mayar (H.K.) Ltd. & Ors v. Owners & Parties, Vessel M.V. Fortune, (2006) 3 SCC 100
• I.T.C. Ltd v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70
• T. Arivandandam v. T.V. Satyapal and Anr., (1977) 4 SCC 467
• Dr. Narayan Ganesh Dastane v. Sucheta Narayan Dastane, 1975 (2) SCC 326
• Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121
• A. Jayachandra v. Aneel Kaur, 2005 (2) SCC 22
• Mohandas Panicker v. Dakshayani, 2013 SCC Online Ker 24493
• Gananath Pattnaik v. State of Orissa, 2002 (2) SCC 619
• Harbhajan Singh Monga v. Amarjeet Kaur, 1985 SCC Online MP 83
• Smt. Uma Wanti v. Arjan Dev, 1995 SCC Online P & H 56
• Mrs. Rita Nijhawan v. Mr. Bal Krishna Nijhawan, ILR (1973) I Delhi 944
• Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511
• Ravi Kumar v. Jumla Devi, 2010 SCCR 265
• Ramchander v. Ananta, 2015 (11) SCC 539
• Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778
• Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176
• Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40
• Savitri Pandey v. Prem Chandra Pandey, 2002 (2) SCC 73
• Debananda Tamuli v. Kakumoni Kataky, (2022) 5 SCC 459

Case Details

Case Number: Miscellaneous Appeal No. 114 of 2017; arising out of Matrimonial (Divorce) Case No. 413 of 2013 (Family Court, Katihar)

Case Title: Savita Mandal v. Nakshtra Kumar Mandal

Citation: 2024 (1) PLJR 350

Court: High Court of Judicature at Patna

Coram: Hon’ble Mr. Justice P. B. Bajanthri and Hon’ble Mr. Justice Jitendra Kumar

Judgment Date (High Court): 25.08.2023

Impugned Order: Judgment dated 12.01.2017 of the Additional Principal Judge, Family Court, Katihar

Advocates:

For the Appellant (wife): Mr. Mukesh Kumar Jha, Advocate

For the Respondent (husband): Mr. Jibendra Mishra, Advocate

Nature of Case: Miscellaneous Appeal against dismissal of a divorce and child custody petition under Section 13(1)(i-b) of the Hindu Marriage Act, 1955, by the Family Court.

Final Outcome: Appeal dismissed; Family Court judgment upheld; no decree of divorce; custody issue held infructuous as children had attained majority; parties to bear their own costs.

Link to Judgment: Click here to read the full judgment of the Patna High Court

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