Rongon Mukhopadhyay, J.

1. Heard Mr. A.K. Sahani, learned counsel for the appellant and Mr. S.K. Laik, learned counsel appearing for the respondent.

2. This appeal is directed against the judgment and decree dated 28.06.2019 (Decree signed on 11.07.2019) passed by Mrs. Kumari Ranjana Asthana, learned Addl. Principal Judge, Addl. Family Court, Dhanbad in Original Suit No. 667 of 2016, whereby and whereunder the suit preferred by the plaintiff (appellant herein) u/s 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 has been dismissed.

3. For the sake of convenience both the parties are referred to in this judgment as per their status in the learned court below.

4. The plaintiff (appellant herein) had filed a suit u/s 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 against the defendant (respondent herein) in which inter alia it has been stated that the marriage of the plaintiff was solemnized with the defendant on 11.05.2013 at Manaitand, Dhanbad as per Hindu rites and customs. After the marriage the plaintiff brought the defendant to his native village at Dhanbad and gave full love, affection and respect to the defendant and had always tried to keep her happy and fulfill her basic requirements. However, after a few days of marriage the defendant started pressurizing the plaintiff to cut off all relationship with his parents and other family members and when the plaintiff made an objection, he was threatened by the defendant of implicating him and his family members in some false criminal case. Efforts made by the plaintiff to convince her to forego such demand went in vain and ultimately on 19.03.2014 the defendant left her matrimonial house. The plaintiff went to his in- law’s place and stated about the conduct of the defendant but the family members of the defendant fully supported the action of the defendant and even threatened the plaintiff not to interfere in the personal life of the defendant. At the intervention of family friends, relatives and well wishers the defendant joined the company of the plaintiff in Delhi where she resided peacefully for a few days. Such peace was however short-lived as she once again reverted back to her misbehavior, taunts and insults aimed at the plaintiff. The defendant used to disclose that she is not happy with the marriage and such marriage was solemnized against her wishes by her parents. The defendant always used to follow the instructions of her parents and used to get unnecessarily involved in quarrels with the plaintiff. It has been stated that the defendant had also written down her desire not to stay with the petitioner which written paper is in possession of the plaintiff. It has been stated that the defendant always forced the plaintiff to take her for shopping thrice a week and dinner in some hotel and she refused to cook food. When the plaintiff expressed his inability to meet such expenses the defendant used to humiliate and taunt the plaintiff about his financial status. Due to such conduct of the defendant the plaintiff could not concentrate on his job and started remaining absent from his duty. In the meantime, the defendant again without the consent or permission of the plaintiff went to her parental house from where the father of the plaintiff brought her back on 14.05.2014 at Kusum Vihar and tried to make her understand the duties and responsibilities she should perform but the same fell on deaf ears. On 15.05.2014, in the evening when the mother-in-law of the defendant was busy in performing puja and other family members had gone outside the house the defendant without intimating anyone left the house at Kusum Vihar and when the parents of the plaintiff contacted the parents of the defendant, they came to know that the defendant has gone to her parents’ house. It has been stated that on 08.06.2014 the father of the plaintiff received a phone call from the uncle of the defendant namely Bhola Singh who had given a threat of finishing off the entire family and on account of such threat the father of the plaintiff had filed a petition u/s 39 of the Cr.P.C. Due to the constant threat meted out by the defendant and her family members the father of the plaintiff had given a written complaint to S.P., Dhanbad on 25.09.2014. During her stay at her parental house the defendant continuously sent threatening SMS to the plaintiff in his mobile in order to ruin the entire life of the plaintiff. The plaintiff has been unnecessarily harassed by the defendant and is facing mental agony and pain due to the acts of the defendant. The defendant has also deserted the plaintiff since 19.03.2014 and is having no relationship with her since then.

5. On being noticed the defendant had appeared and filed her written statement, in which, the allegations leveled against the defendant have been denied. It has been stated that after a few days of marriage the plaintiff and his family members started demanding Rs. 5,00,000/- and a Swift Dezire Car as dowry and for non-fulfillment of which she was subjected to torture and the pregnancy of the defendant was also terminated. It has been stated that the defendant once again conceived and the plaintiff and his family members once again tried to abort the fetus and she was also ousted from her matrimonial house. She was treated by a doctor at her parental house and on 17.11.2014 she gave birth to a male child who was named Ansh Singh. On 16.08.2015 the plaintiff and his father came to her parental house and again made an unlawful demand and on refusal she was assaulted by them. The defendant has also lodged a criminal case against the plaintiff and her in-law being Dhanbad (Dhansar) P.S. Case No. 883/2015 u/s 313, 498A/34 of the IPC and Section 3/4 of the D.P. Act which is pending.

6. Based on the pleadings of the parties the following issues were framed for adjudication:

(I) Whether the plaintiff is entitled for a decree of divorce u/s 13(1) (ia) of the Hindu Marriage Act

(II) Whether the plaintiff is entitled to a decree of divorce u/s 13(1) (ib) of the Hindu Marriage Act

(III) Whether the suit of plaintiff is maintainable under the law

7. The issues earlier framed were recast and the same are as follows :

(I) Whether the suit is maintainable in its present form

(II) Whether the plaintiff has got a valid cause of action for the suit

(III) Whether the marriage between the plaintiff and defendant is fit to be dissolved on the grounds of cruelty and desertion

(IV) Whether plaintiff is entitled for the relief claimed

8. The plaintiff in order to prove his case has examined himself as a witness.

9. P.W.1 (Sunil Kumar Singh) is the plaintiff who has stated about solemnization of his marriage with Dolly Singh (defendant) on 11.05.2013 as per Hindu rites and customs. After marriage the defendant was taken to her matrimonial house at Kusum Vihar, Ring Road, Saraidhela, Dhanbad where he tried his level best to keep the defendant happy and fulfill all her requirements. After a few days of marriage, the defendant started pressurizing him to end his relationship with his parents and family members. The defendant also refused to heed the advice given to fulfill all her marital obligations and threatened to implicate him and his family members in false criminal cases. He has stated on 19.03.2014 the defendant left her matrimonial house at which he had gone to the parents’ house of the defendant and narrated all the facts but they also supported the defendant and threatened him not to interfere in the personal life of the defendant otherwise he will have to face the consequences. Due to intervention of his well wishers and relations the defendant came back to her matrimonial house and also agreed to accompany him to Delhi. At Delhi she lived peacefully for a few days but thereafter once again started misbehaving and insulted him without any apparent reason. The defendant used to say that she was not happy with the marriage with him and her marriage was settled without her consent. At the instigation of her parents the defendant continued with her unruly behavior. The reluctance of the defendant to stay with him was also taken down in writing by the defendant. The defendant also forced him to take her for shopping thrice a week and to have dinner in some hotel and also refused to cook. When he showed his inability to meet such demands the defendant insulted him by saying the he belongs to a family of beggars. The disruption in his marital life affected his work and he started remaining absent from his job. In the meantime, the defendant disappeared from the house at Kusum Vihar without his permission or the permission of his family members. Upon search it could be detected that the defendant is staying at her parents’ house but her family members refused to have any kind of dialogue with either him or his family members. On 08.06.2014 his father received a telephone call from the uncle of the defendant threatening to murder his entire family as a result of which his father had filed a petition u/s 39 of the Cr.P.C. before the SDM, Dhanbad. A complaint was also made to S.P., Dhanbad by his father on 25.09.2014 due to the persistent torture and harassment at the hands of the defendant. The defendant during her stay at her parental house kept on treating him with cruelty. He has been deserted by the defendant since 19.03.2014. The defendant has also filed a criminal case against him and his family members u/s 498A, 313, 341 of the IPC and Section 3/4 of the D.P. Act.

In cross-examination, he has deposed that he does not want to keep his wife and child with him. The defendant had become pregnant when she was staying with him at Delhi. He has deposed that the defendant also had an abortion.

10. The defendant has examined only herself as a witness.

11. D.W.1 Dolly Singh is the defendant who has stated that all the allegations made by the plaintiff are false and frivolous. She has stated that after marriage she was subjected to torture and she has also learnt that the plaintiff was earlier married to another lady at Hyderabad and the said marriage ended in its dissolution. On account of the torture meted out to her a case has already been lodged by her being Dhanbad (Dhansar) P.S. Case No. 883/2015 which is at present pending. She has stated that out of her wedlock with the plaintiff she gave birth to a child and the entire expenses of the delivery were borne by her father. She has stated that she is still ready and willing to lead her conjugal life with the plaintiff.

In cross-examination, she has deposed that she has filed a case of maintenance and a dowry related case against the plaintiff. After a few days of marriage, the plaintiff had taken her and had kept her at Dwarka in a rented house where she stayed with the plaintiff till 17.03.2014. The treatment was done at S.G.T. Multi Speciality Hospital, New Delhi, and Sidharth Hospital. When she had come back from Delhi she had gone to her matrimonial house. When the plaintiff had sent her obscene messages, she had responded by sending him obscene messages as well.

12. It has been submitted by Mr. A.K. Sahani, learned counsel appearing for the plaintiff (appellant herein) that cruelty and desertion have both been proved by the plaintiff. He has submitted that the plaintiff in his plaint as well as his evidence has enumerated several instances which would highlight the degree of cruelty meted out to the plaintiff and his family members. The situation came to such a pass that the father of the plaintiff had to file an Informatory Petition u/s 39 of the Cr.P.C. before the court apart from submitting an application before the S.P., Dhanbad. The defendant never intended to reside at her matrimonial house and fulfill the duties and obligations expected from her and this would gain strength from her conduct which reflects on her going to her parental house without informing either the plaintiff or his family members. It has been submitted that the reluctance of the defendant to stay with the plaintiff has also been taken down in writing by the defendant and exchange of obscene messages further encapsulates the allegations leveled by the plaintiff against the defendant.

13. Mr. S.K. Laik, learned counsel appearing for the defendant (respondent herein) has submitted that the impugned judgment dated 28.06.2019 does not suffer from any perversity and has elaborately discussed the materials available on record while dismissing the suit. It has been submitted that the factual aspects clearly reveal that the defendant never intended to withdraw from the society of the plaintiff and was forcibly ousted from her matrimonial house for non-fulfillment of the dowry demands. It therefore, cannot be propounded that the defendant had left her matrimonial house without any reasonable cause. Mr. Laik has also submitted that so far as cruelty is concerned, the reverse appears to be true as it was the defendant who was at the receiving end of the torture committed by the plaintiff and his family members.

14. We have heard the learned counsel for the respective parties and have also perused the lower court records.

15. Issue no. III which has been recast includes cruelty and desertion and, therefore, this issue is pivotal for deciding the suit and which has already been answered in favour of the defendant.

16. So far as the issue of mental cruelty is concerned, the plaintiff has highlighted several instances which according to him clearly indicate that the plaintiff was subjected to mental cruelty and it had reached such a stage from where it would be impossible for him to resume marital life with the defendant. The plaintiff in his plaint as well as in his evidence as P.W.1 has stated about the disruptive and humiliating behavior of the defendant which started after a few days of marriage and was intermittently visible throughout his marital life. The pressure created by the defendant upon the plaintiff to cut off all relations with his parents and other relatives and to stay separate: the peaceful stay of the defendant with the plaintiff at Delhi which was short-lived as the behavior of the defendant once again reared its head: the disappearance of the defendant from her matrimonial house without informing anyone and subsequently having resurfaced at her parental house: forcing the plaintiff to splurge on shopping and on restaurants and finally refusing to stay with him as the marriage was not solemnized with her consent are the instances which according to the plaintiff has made it impossible for him to continue with his matrimonial relationship with the defendant. The defendant apart from denial of such claim has stated about the demand of dowry made from the side of the plaintiff and the torture committed upon her for non-fulfillment of the said demand. She has also stated about her forcible abortion and her ouster from her matrimonial house after which she started staying at her parental house where she gave birth to a child. She has also stated about a criminal case and the case of maintenance instituted against the plaintiff by her.

17. In the case of “Shobha Rani versus Madhukar Reddi” reported in (1988) 1 SCC 105, [LQ/SC/1987/761] it has been observed as follows:

“4. Section 13(1)(i-a) uses the words “treated the petitioner with cruelty”. The word “cruelty” has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”

18. Though the plaintiff has highlighted several instances of mental cruelty committed upon him by the defendant but none of such acts on the part of the defendant can be considered commission of cruelty in the backdrop of the case. The charges alleged against the defendant are not so grave which would lead to a conclusion that the plaintiff cannot reasonably be expected to live with the defendant. This is further strengthened by the conduct of the plaintiff himself as he had hardly taken any effort to restore normalcy in his matrimonial life. The plaint and the evidence of the plaintiff examined as P.W.1 is replete with vitriols aimed towards the defendant but there does not seem to be any instance which would show the bona fide of the plaintiff in making efforts to bring back the defendant to her matrimonial house and resume marital ties with her. The contention of the plaintiff not to stay with the defendant is palpable on the face of the plaint and his evidence and the plaintiff seems to have taken all precautions regarding the anticipated threat from the defendant as the Informatory Petition preferred by the father of the plaintiff would suggest. Moreover, the plaintiff has not examined anyone as a witness save and except himself and, therefore, his assertion in the plaint remains uncorroborated.

19. Human relationship apart from being complex has many layers attached to it. The complexity of their relationship varies from person to person and there can be no strait jacket formula for unraveling such relationship. As in the present case the averments in the plaint and the evidence of P.W.1 envelops a preconceived design to get rid of the defendant. This fact is revitalized in his cross-examination where he has categorically stated that he does not want to keep his wife and child with him. The plaintiff, therefore, has failed to prove mental cruelty and the same was rightly answered in favour of the defendant.

20. So far as desertion is concerned, it is the case of the plaintiff that the defendant had willfully deserted him without any reasonable cause and both are staying separate since 19.03.2014. The explanation to Section 13 (1) of the Hindu Marriage Act, 1955 defines desertion and the same reads as follows:

“[Explanation.— In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly].”

21. In the case of “Bipinchandra Jaisinghbai Shah versus Prabhavati” reported in (1956) SCR 838 [LQ/SC/1956/84] , it has been held as follows:

“9. What is desertion Rayden on Divorce which is a standard work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms:

“Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.”

The legal position has been admirably summarised in paras 453 and 454 at pp. 241 to 243 of Halsbury’s Laws of England (3rd Edn.), Vol. 12, in the following words:

“In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.

The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or, where the offence appears as a cross- charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.”

Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned :

(1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three year period and the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus, provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard, C.J. in the case of Lawson v. Lawson1 may be referred to:

“These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution….”

With these preliminary observations we now proceed to examine the evidence led on behalf of the parties to find out whether desertion has been proved in this case and, if so, whether there was a bona fide offer by the wife to return to her matrimonial home with a view to discharging marital duties and, if so, whether there was an unreasonable refusal on the part of the husband to take her back.”

22. For the deserting spouse the essential conditions are:

(a) the factum of separation and,

(b) the intention to bring cohabitation permanently to an end (animus deserendi).

The essential conditions for a deserted spouse are:

(a) the absence of consent and,

(b) absence of intent giving reasonable cause to the spouse leaving the matrimonial house to form the necessary intention (“Lachman Utamchand Kirpalani Versus Meena Alias Mota” reported in AIR 1964 SC 40 [LQ/SC/1963/187] ).

23. None of the conditions either in respect of a deserting spouse or a deserted spouse are fulfilled in the present case. The withdrawal from the society of the plaintiff and the abandonment of the plaintiff by the defendant are not voluntarily but is based upon the forcible stay of the defendant at her parental house due to her torture and ouster from her matrimonial house as the evidence of the defendant suggests. The criminal case instituted by the defendant against the plaintiff further speaks volumes of the absence of willful abandonment of the plaintiff by the defendant as claimed by the plaintiff. The institution of the criminal case is a pointer to the fact that leaving her matrimonial house was with a reasonable cause as indicated above.

24. Thus, the issue of desertion is also answered against the plaintiff and in favour of the defendant.

25. Consequent to the discussions made hereinabove we do not feel inclined to interfere in the impugned judgment dated 28.06.2019 passed by Mrs. Kumari Ranjana Asthana, learned Addl. Principal Judge, Addl. Family Court, Dhanbad in Original Suit No. 667 of 2016 and, therefore, we dismiss this appeal.

26. Pending I.As., if any, are closed.