JUDGMENT : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY Heard Mr. Amit Kumar Das, learned counsel appearing for the appellant and Mr. Sumit Prakash, learned counsel for the respondent. 2. This appeal is directed against the judgment and decree dated 27.05.2019 (decree signed on 15.06.2019) passed by Sri Nikesh Kumar Sinha, learned Principal Judge, Family Court, Deoghar in Original Suit No. 57 of 2014 whereby and whereunder the suit preferred by the appellant seeking divorce has been dismissed. 3. For the sake of convenience, both the parties are referred to in this judgment as per their status before the learned court below. 4. The petitioner (appellant herein) had preferred a suit under Section 13 (1) (i-a) (i-b) of the Hindu Marriage Act, 1955 seeking dissolution of marriage with the respondent (respondent herein) in which it has been stated that the marriage of the petitioner was solemnized with the respondent on 20.06.1983 as per Hindu rites and customs at Saharsa as per Maithili Brahmin customs. After the second marriage had taken place between the parties, the respondent was brought to the residence of the petitioner in Quarter No. B/59, Doranda, Ranchi on 05.07.1983 and the respondent had lived with the petitioner at the said place till 29.12.1990. Out of the said wedlock of the petitioner and the respondent, a son was born on 01.04.1986. On 30.12.1990, the respondent without any just and reasonable cause had left the residence of the petitioner and had gone to her parents’ house at Saharsa. It has been stated that during her stay with the petitioner, the respondent had taken admission in M.A. (Psychology) in Ranchi University, Ranchi and ultimately passed out in 1st class. During her stay with the petitioner, the respondent had treated the petitioner with cruelty as she not only abused and manhandled the petitioner, but also assaulted him in presence of his parents, friends, associates and relatives. The parents of the petitioner suffered from several ailments and despite request made by the petitioner, the respondent did not take care of them. The petitioner himself suffered from diabetes, high blood pressure and a fractured spinal cord, but the respondent who was posted as an Assistant Professor of Psychology at Satsang College, Deoghar refused to join the petitioner and live with him, rather abused the petitioner and his parents over phone. The petitioner himself suffered from diabetes, high blood pressure and a fractured spinal cord, but the respondent who was posted as an Assistant Professor of Psychology at Satsang College, Deoghar refused to join the petitioner and live with him, rather abused the petitioner and his parents over phone. In spite of the ill-behaviour of the respondent, the petitioner always intended to live a happy conjugal life with the respondent for which he wrote a series of letter to the respondent requesting her to come back to Ranchi and lead a marital life with the petitioner, but she did not give any heed to such letters. The petitioner had contacted the respondent on 26.10.1990 over telephone and requested her to come back to his residence at Ranchi, but she flatly refused and also abused him in filthy language. The petitioner also requested his father-in-law on 27.04.1991 and 30.05.1991. The petitioner had himself gone to Saharsa on 31.12.1991 to persuade the respondent to come back to Ranchi, but the respondent and her parents instead humiliated and insulted the petitioner and he had no option but to come back to Ranchi. It has been stated that the petitioner had given a legal notice to the respondent which was duly received by her, but the same did not evoke any response. The petitioner also thereafter filed a suit under Section 9 of the Hindu Marriage Act, 1955 which was registered as Matrimonial Title Suit No. 31 of 1992, in which a decree for restitution of conjugal rights was passed on 25.01.1994. In spite of the decree of restitution of conjugal rights, the respondent did not come back to the residence of the petitioner and continued to withdraw herself from the society of the petitioner. The petitioner had written letters, contacted the respondent telephonically and also personally went to the house of the respondent to persuade her to come back to Ranchi, but she remained adamant and refused resumption of marital ties with the petitioner. The petitioner had written letters, contacted the respondent telephonically and also personally went to the house of the respondent to persuade her to come back to Ranchi, but she remained adamant and refused resumption of marital ties with the petitioner. The petitioner had thereafter filed a suit for dissolution of marriage with the respondent on the ground of cruelty and desertion being Matrimonial Title Suit No. 20 of 1996 in which the respondent appeared and contested the suit and since an assurance was given by the respondent that she would come and stay with the petitioner, the petitioner did not take any step in the suit resulting in its dismissal on 20.08.2022. The petitioner due to the acts of the respondent had suffered mental agony. It has been stated that the educational expenses of the son of the petitioner is being borne by the petitioner himself. 5. On being noticed, the respondent had appeared and filed a written statement in which the allegations levelled by the petitioner upon her have been denied. It has been stated that after the marriage the respondent stayed with the petitioner for 15 days and thereafter went back to her parents’ place. The petitioner used to torture and assault the respondent and had also demanded Rs. 5,00,000/- for purchasing land and constructing a house and believing the petitioner, the father of the respondent gave him the desired amount after which a house was constructed by the petitioner at Saharsa where both the parties started residing together and stayed till 1990. A son was born to the respondent on 09.12.1985. In the month of December 1985, the petitioner took transfer from Saharsa to Ranchi and left the respondent and his son with the father of the respondent with an assurance that he would take them to Ranchi later on. The petitioner however never came back to Saharsa to bring back the respondent and when the respondent came to Ranchi on 09.08.1991 with her maternal uncle, they were insulted and thrown out of the house. It has been stated that Streedhan of the petitioner is still in possession of the petitioner. During pregnancy, the petitioner had kicked at the stomach of the respondent in order to abort the foetus, after which she was taken to the hospital, where she had a premature delivery on 09.12.1985. It has been stated that Streedhan of the petitioner is still in possession of the petitioner. During pregnancy, the petitioner had kicked at the stomach of the respondent in order to abort the foetus, after which she was taken to the hospital, where she had a premature delivery on 09.12.1985. In the year 2010, the petitioner was admitted in a hospital and the respondent had taken proper care of her husband and had also borne the expenses which was to the tune of Rs. 50,000/-. It has been stated that Matrimonial Title Suit No. 20 of 1996 was dismissed by deciding each of the issues framed. The respondent had denied that the educational expenses of her son are being borne by the petitioner and in fact it is the respondent who spent on upbringing and education of her son. In the year 2002, when Matrimonial Case No. 20 of 1996 was dismissed, the petitioner had approached the respondent and her father with a proposal for settlement of all the disputes and showing such interest from the side of the petitioner, a settlement was arrived at to the effect that the father of the respondent shall construct a house in a plot situated at Gauri Shankar Nagar and the respondent will reside in it. The house was accordingly constructed, the expenses of which were partly borne by the respondent and partly by the petitioner. The petitioner seldom visits the house and never resided together in the said house on his own free will. In the year 2008, the respondent was selected to the post of Lecturer and at present she is posted as a Lecturer in A. S. College, Deoghar. It has been stated that the petitioner is a characterless person and several complaints were made against him and a departmental inquiry is also pending against him. 6. Based on the pleadings of the parties, the following issues were framed for adjudication: (i) Whether the suit as framed is maintainable in its present form? (ii) Whether the petitioner has a valid cause of action? (iii) Whether the respondent has committed any act of cruelty upon the petitioner? (iv) Whether the respondent had willfully deserted the petitioner since after March 2008 without any reasonable cause? (v) Whether the petitioner is entitled for dissolution of his marriage by a decree of divorce on the grounds of cruelty and desertion? (vi) Any other relief/reliefs? (iii) Whether the respondent has committed any act of cruelty upon the petitioner? (iv) Whether the respondent had willfully deserted the petitioner since after March 2008 without any reasonable cause? (v) Whether the petitioner is entitled for dissolution of his marriage by a decree of divorce on the grounds of cruelty and desertion? (vi) Any other relief/reliefs? 7. The petitioner during trial has examined 5 witnesses in support of his case including himself. P.W. 1 – Sunil Kumar Jha is the petitioner in the suit who has stated about the solemnization of his marriage with the respondent on 20.06.1983 as per Hindu rites and customs. After the marriage, the respondent came to reside with him in his father’s house at quarter no. B/59, Doranda, Ranchi on 05.07.1983. He has stated that a son was born on 01.04.1986 who is named Vivek Raj. On 30.09.1990, the respondent without disclosing any reasons left his residence and went to her father’s place. During her stay at the house of the petitioner’s father, the respondent had completed her M.A. in Psychology. While studying at Doranda, the behaviour of the respondent towards him as well as his parents was rude and she used to abuse him in presence of his parents and friends. He was also sometimes subjected to assault. The behaviour of the respondent caused him physical and mental agony. His parents were also humiliated by the respondent who also once injured his mother on the head. His parents suffered from various ailments which aggravated due to the ill-behaviour of the respondent. He had tolerated such behaviour on the fear of being castigated by the society. He has taken efforts for resumption of his marital life with the respondent by sending letters and calling her over phone which was responded with expletives aimed at him. He had filed a suit for restitution of conjugal life being Matrimonial Title Suit No. 31 of 1992 which was decreed in his favour, but in spite of the same the respondent refused to come back and reside with him. On being compelled with the adamant behaviour of the respondent, he had instituted a suit for divorce and during its pendency, the respondent expressed her desire to stay with him and this resulted in his not taking any interest in the divorce suit which was ultimately dismissed on 20.08.2022. On being compelled with the adamant behaviour of the respondent, he had instituted a suit for divorce and during its pendency, the respondent expressed her desire to stay with him and this resulted in his not taking any interest in the divorce suit which was ultimately dismissed on 20.08.2022. The respondent had come to stay with him along with her son, but had once again resorted to her earlier behaviour. In the year 2010, he suffered from some complications in his spinal cord and he had to undergo treatment for 9 months, but in spite of having knowledge of the said fact, the respondent did not visit her matrimonial house. The respondent is the Principal of Satsang College, Deoghar and the full expenses of his son are borne by him. The respondent had also instituted a criminal case being PCR Case No. 2050 of 2012 which was dismissed on 14.12.2012 by the court of S.D.J.M., Ranchi. The respondent had got published the allegation of rape committed by the petitioner in various newspapers and had used these cuttings in the transfer application for transferring the case from Ranchi to Deoghar. He had denied that he had demanded Rs. 5,00,000/- from the father of the respondent which amount was entrusted to him. In cross-examination, he has deposed that in the suit for divorce, his part statement as a witness was recorded. The evidence could not be completed as the respondent started residing with him. P.W. 2 – Mahendra Bedia looks after the petitioner and his old parents. Sometimes, he also drives the car of the petitioner. From 2009 till date, he has not seen the respondent coming to the house of the parents of the petitioner or to the house of the petitioner situated at Gauri Shankar Nagar. In cross-examination, he has deposed that he does not have any personal knowledge about the case. P.W. 3 – Sunil Kumar Mahto is the guard in Mrinalini Apartment since 2006 and he stayed there along with his family. He knew the petitioner and the respondent who stayed together in Mrinalini Apartment till the year 2008. During such period, he had witnessed the rude behaviour of the respondent towards the petitioner. On several occasions on hearing sounds of quarrel, he had gone to flat no. He knew the petitioner and the respondent who stayed together in Mrinalini Apartment till the year 2008. During such period, he had witnessed the rude behaviour of the respondent towards the petitioner. On several occasions on hearing sounds of quarrel, he had gone to flat no. 207 and had seen the respondent abusing the petitioner and though the parents of the petitioner tried to pacify the situation, but it had no effect on the respondent. He had also seen the respondent assaulting the mother of the petitioner who suffered head injury due to such assault. He has stated that the respondent is a cruel lady. In cross-examination, he has deposed that the mother of the petitioner was assaulted by the respondent in his presence. No one had come to pacify the situation. P.W. 4 – Biltu Banerjee is a student of the petitioner who used to take tuition from the petitioner from 2005 to 2007 for which he had to come to the house of the petitioner situated at Mrinalini Apartment, South Office Para, Doranda, Ranchi. During the said visits, he had seen on several occasions the quarrel between the petitioner and the respondent. The respondent used expletives directed against the petitioner and his old parents. The respondent wanted the petitioner to oust his parents from the house. In cross-examination, he has deposed that the focal point of quarrel between the petitioner and the respondent were parents of the petitioner. P.W. 5 – Shashi Bhushan Prasad is acquainted with the petitioner since the year 2006. It has been stated that he used to visit the house of the petitioner for clearing some doubts in the subject of Political Science and Constitution of India and he was preparing himself for the JPSC examination. He had experienced during that period, the cruel behaviour of the respondent towards the petitioner and his parents. She also used to abuse the petitioner and his old parents. The respondent used to humiliate the petitioner in front of his colleagues and acquaintances. 8. The respondent has examined as many as four witnesses in support of her case. R.W. 1 – Uttam Mohan Prasad is acquainted with both the parties. She also used to abuse the petitioner and his old parents. The respondent used to humiliate the petitioner in front of his colleagues and acquaintances. 8. The respondent has examined as many as four witnesses in support of her case. R.W. 1 – Uttam Mohan Prasad is acquainted with both the parties. He has stated that after one year of marriage, the petitioner had solemnized ‘Gauna’ with the respondent and had brought the respondent to Ranchi, but after 15 days returned back to Saharsa as the petitioner was working in Saharsa. In the initial stage, the petitioner and the respondent stayed in the house of the respondent for about two years and during this period, the petitioner had regularly committed torture upon the respondent. In the year 1985, the petitioner had kicked at the stomach of the respondent in order to cause miscarriage and when bleeding started, the father of the respondent took her to a hospital where she delivered a male child. On the demand made by the petitioner, the father of the respondent had given him Rs. 5,00,000/- for purchasing a plot of land in Saharsa. In the year 1990, the petitioner managed to get transferred his job to Ranchi and he came to Ranchi while leaving the respondent and his child at Saharsa. When even after one year, the petitioner did not come to take back the respondent and the child, she went to the house of the petitioner at Ranchi along with her maternal uncle, but they were humiliated by the petitioner. In the year 1996, the petitioner had instituted a case for divorce against the respondent which was dismissed in the year 2002. The petitioner had requested for some financial assistance from the father of the respondent for constructing a house at Gauri Shankar Nagar. The father of the respondent thinking about the welfare of the respondent had extended some monetary help to the petitioner and after the house was constructed, the respondent resided at Gauri Shankar Nagar, but she was once again subjected to torture and physical assault. He has stated that during her stay at Ranchi, the respondent used to look after the welfare of her parents-in-law. In the year 2008, the respondent secured a job and her posting was at Deoghar as a result of which she started residing at Deoghar. He has stated that during her stay at Ranchi, the respondent used to look after the welfare of her parents-in-law. In the year 2008, the respondent secured a job and her posting was at Deoghar as a result of which she started residing at Deoghar. After an interval of a week or 10 days, she used to come to Ranchi, but in 2012, the petitioner kept the streedhan of the respondent and put a lock on the house. In cross-examination, he has deposed that he had gone to the house of the petitioner at Gauri Shankar Nagar only once. He has gone to verify as to whether the respondent has been displaced from the said house or not. At that point of time, the respondent was at Deoghar. He respects the respondent like his elder sister. He does not have any knowledge about the criminal case instituted by the respondent against the petitioner and his family members. R.W. 2 – Archana Pathak is the younger sister of the respondent who has stated about the marriage solemnized between the petitioner and the respondent in the year 1983 at Saharsa. After about a year ‘Gauna’ ceremony was held and the respondent was brought to Ranchi by the petitioner. She has stated that after 15 days both returned to Saharsa since it was the work place of the petitioner and both stayed at the father’s place of the respondent at Saharsa for about two years and during this period, the petitioner had resorted to physical and mental torture upon the respondent. In the year 1985 when the respondent became pregnant, the petitioner who wanted to abort the child had kicked the respondent in her stomach after which bleeding started and the respondent was taken to the hospital, where she was operated upon and she gave birth to a male child. Her father had given Rs. 5,00,000/- to the petitioner to enable him to construct a house and after the construction was completed, the petitioner and the respondent stayed there till the year 1990. The petitioner was transferred to Ranchi in the year 1990 where he joined leaving behind the respondent and his child. Her father had given Rs. 5,00,000/- to the petitioner to enable him to construct a house and after the construction was completed, the petitioner and the respondent stayed there till the year 1990. The petitioner was transferred to Ranchi in the year 1990 where he joined leaving behind the respondent and his child. When after one year, the petitioner did not take the respondent and the child to Ranchi, the respondent along with her maternal uncle went to Ranchi, but they were humiliated by the petitioner and were not allowed to enter into the house. In the year 1992, the petitioner had instituted a case against the respondent in which the respondent had filed a reply and after the judgment in the said case, the respondent along with her relatives had gone to stay in the house of the petitioner, but she was not allowed to enter. In 1996, a suit for divorce was instituted by the petitioner against the respondent at Ranchi and after the said case was dismissed, the petitioner in 2002 had met the father of the respondent with a proposal to give some financial assistance to him for constructing a house at Gauri Shankar Nagar. The father of the respondent keeping in mind the welfare of the respondent had extended some monetary help to the petitioner and after the house was constructed, the respondent started staying with the petitioner at Gauri Shankar Nagar, but here also the respondent was subjected to torture. The respondent during her stay at Ranchi also took care of her parents-in-law. The petitioner had never given any maintenance either to the respondent or to his child. In the year 2008, the respondent secured a job and her posting was at Deoghar where she started staying and after a week or 10 days, she used to come and stay at Gauri Shankar Nagar. In the year 2012, the petitioner took away the streedhan of the respondent and locked the house. The petitioner was admitted in the hospital in the year 2010 and it was the respondent who looked after him and the expenses of Rs. 50,000/- was borne by the respondent. In cross-examination, he has stated that there never was a cordial relationship between the petitioner and the respondent. The last time, the respondent had gone to her matrimonial house was in the year 2012. 50,000/- was borne by the respondent. In cross-examination, he has stated that there never was a cordial relationship between the petitioner and the respondent. The last time, the respondent had gone to her matrimonial house was in the year 2012. R.W. 3 – Vivek Raj is the son of the parties of the case who has stated that it is wrong to state that the respondent had committed physical and mental torture upon the petitioner. He has reiterated the sworn statement of R.W. 2. Prior to the construction of the house at Gauri Shankar Nagar, he and his mother used to stay at Mrinalini Apartment, where also the petitioner used to torture the respondent and also used to bring other women in the apartment. In the year 2007, he had gone to Mumbai for his further studies and the expenses of his entire study was borne by his mother. The petitioner who is a sadist derives pleasure in torturing him and the respondent. In the year 2012, his mother had instituted a criminal case against the petitioner, but due to torture and family pressure, she was compelled to withdraw the said case. In cross-examination, he has deposed that he is in job since 2013. He had last gone to the house of the petitioner in the year 2011-12. The relationship between his parents was not good; there is no chance of resumption of marital ties between them. The petitioner is a cruel person and it is not possible for him to stay with the petitioner. R.W. 4 – Kiran Pathak is the respondent who has reiterated the statement of R.W. 3. She has stated that the petitioner used to misbehave with the staffs and students of the College and he has also faced a departmental inquiry. In cross-examination, she has deposed that on the second day of marriage, she was subjected to assault by the petitioner. She has a hope that if the petitioner wants, there can be a cordial relationship between them. 9. It has been submitted by Mr. A. K. Das, learned counsel appearing for the petitioner that from the time of marriage, the petitioner has been tortured in various ways by the respondent and several instances in support thereof have been given by the petitioner and his witnesses. 9. It has been submitted by Mr. A. K. Das, learned counsel appearing for the petitioner that from the time of marriage, the petitioner has been tortured in various ways by the respondent and several instances in support thereof have been given by the petitioner and his witnesses. It has been submitted that even the son of the petitioner who has been examined as R.W. 3 has admitted that there is no possibility of resumption of marital ties and that the relationship between the petitioner and the respondent was never cordial. It has further been submitted that despite efforts made by the petitioner, the respondent never showed any inclination to resume marital ties and in fact the respondent had withdrawn herself from the society of the petitioner voluntarily without the knowledge of the petitioner and apparently for no reasons. 10. Mr. Sumit Prakash, learned counsel appearing for the respondent has referred to the evidence of R.W. 3 who is the son of the parties and has categorically stated about the conduct of the petitioner and the manner in which the petitioner had committed torture upon the respondent and had thwarted any attempts made by the respondent to resume marital ties. 11. We have heard the learned counsel for the respective parties and have also perused the lower court records. 12. Issue nos. 3, 4 & 5 juxtapose the allegations of cruelty and desertion against the respondent. 13. Cruelty is not defined in the Hindu Marriage Act, 1955. In the case of “Shoba Rani Vs. Madhukar Reddi” reported in (1988) 1 SCC 105 , the term cruelty has been considered and it has been held 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. 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.” 14. The issue of cruelty and desertion has been considered earlier in the suit which was filed by the petitioner seeking dissolution of marriage in Matrimonial Title Suit No. 20 of 1996 which was dismissed on 20.08.2002 and it was marked as Exhibit B. The same attained finality as the petitioner did not prefer any appeal against the said judgment. The majority of the allegations levelled against the respondent in the present suit seem to be already present in the earlier suit. Certain new insinuations have been levelled against the respondent to the effect that the respondent did not visit the petitioner in the hospital where he was being treated in the year 2010 and the dismissal of the criminal case instituted against the petitioner by the respondent. In the earlier suit, the petitioner did not appear even to complete his examination-in-chief and his evidence was expunged from the records. 15. The marriage of the petitioner was solemnized with the respondent in the year 1983 and the relationship has seen many trials and tribulations ultimately leading to the petitioner and the respondent living separately. The petitioner had instituted a suit for restitution of conjugal rights which was decreed and as per the petitioner, the respondent did not come to stay with him which is falsified by the evidences of P.W. 3 and P.W. 4 who have stated about both staying together in Mrinalini Apartment till the year 2008. The petitioner had instituted a suit for restitution of conjugal rights which was decreed and as per the petitioner, the respondent did not come to stay with him which is falsified by the evidences of P.W. 3 and P.W. 4 who have stated about both staying together in Mrinalini Apartment till the year 2008. Exhibits F and G reveals about the petitioner facing allegations of immorality by the lady teachers and girl students and the disciplinary action had also been taken against him which negates the allegations made by the petitioner against the respondent of defaming him by publishing about the case of rape in various newspapers. 16. The evidence of R.W. 3, who is the son of the parties also assumes significance and he has repeated the allegations made against the respondent while at the same time highlighted the immoral conduct of the petitioner. He has also stated about his educational expenses being borne by the respondent. The petitioner in his evidence or in the evidence of his witnesses failed to highlight any significant incidents which could be construed to be cruelty. It may be noted herein that one of the main reasons for the parties staying separate are due to their work place at Ranchi and Deoghar. Even otherwise, in the broader perspective of the case, the petitioner did not seem to be at the receiving end of the torture, but it is the other way around, as per the respondent and her witnesses and it is the father of the respondent who had given monetary assistance as and when demanded by the petitioner in the hope of diluting the complexities which had occurred in the marital life of the petitioner and the respondent and despite such assistance, the petitioner had repeatedly tried to disengage himself from the marital ties. We therefore do not find any element of cruelty as alleged by the petitioner. 17. So far as the desertion is concerned, the evidences suggest that it was the petitioner who was responsible for not staying with his wife and besides professional engagements forcing them to stay separate, there is no justifiable ground taken by the petitioner which would construe to mean a willful abandonment from the society of the petitioner by the respondent without the knowledge and consent of the petitioner. Once again the evidence of R.W. 3 assumes significance and demolishes the act of desertion as alleged by the petitioner. 18. The learned court below therefore on the basis of a detailed discussion has answered the relevant issues against the petitioner and in favour of the respondent and we do not find any reason to conclude otherwise and consequently this appeal is dismissed. 19. Pending I.A., if any stands closed.