Patna High Court
Vishal GuptaversusNandita
- Decided
- Disposal
- DISMISSED
Holding
The High Court held that the Family Court’s ex‑parte decree of divorce was valid, as proper service was effected and the appellant’s desertion and cruelty satisfied the statutory grounds, rendering no interference necessary.
Summary
The appellant Vishal Gupta appealed against an ex‑parte divorce decree granted by the Family Court, Vaishali, on the ground that the summons were not properly served and that the decree was based on unsubstantiated cruelty despite the parties having a mutual consent to divorce. The marriage, solemnised in 2012, had broken down with the appellant allegedly deserting the respondent from February 2014 and engaging in an illicit relationship, leading the respondent to file a petition under the Hindu Marriage Act. The Family Court, after hearing the respondent’s five witnesses, held that the appellant’s conduct amounted to cruelty and desertion and granted the divorce. The appellant contended that service was defective, that a consent term dated 21‑12‑2016 indicated mutual settlement, and that the court mischaracterised desertion as cruelty. The High Court examined the statutory requirements for desertion, relevant Supreme Court pronouncements on mental cruelty, and the adequacy of service, concluding that the Family Court had complied with procedural law and that the decree was lawful. Consequently, the appeal was dismissed and the divorce decree upheld.
Issues considered
- Whether the ex‑parte decree of divorce is vitiated by alleged improper service of summons under the Family Courts Act, 1984.
- Whether the Family Court correctly applied the grounds of cruelty and desertion under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955.
- Whether the existence of a mutual consent term dated 21‑12‑2016 bars the decree on the ground of cruelty.
- Whether the Family Court had jurisdiction to pass the decree despite the omission of specific statutory provisions.
Legislation cited
- Family Courts Act, 1984 — s. 19
- Hindu Marriage Act, 1955 — s. 13(1)(ia), 13(1)(ib)
Subjects
- divorce
- ex‑parte decree
- desertion
- mental cruelty
- service of summons
- Family Courts Act
- Hindu Marriage Act
- mutual consent
- jurisdiction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.437 of 2021
======================================================
Vishal Gupta son of Late Bejoy Kumar Gupta resident of 10/1, Burnt Salt
Gola Lane, Near Anjali Eye Centre, Howrah, West Bengal- 711101.
... ... Appellant/s
Versus
Nandita wife of Sri Vishal Gupta @ daughter of Late Jagmohan Goel, resident
of Goel Apartment, Wireless Street, J.B. Nagar, Andheri (E), Mumbai- 400
059.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rajani Kant Mishra, Advocate
For the Respondent/s : Ms. Sakshi Bhatnagar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE NANI TAGIA
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA)
Date : 06-02-2026
1. Heard learned counsel for appellant as well as
the learned counsel for respondent.
2. The present appeal has been filed under Section
19 of the Family Courts Act, 1984 by the appellant for setting
aside the order dated 05.01.2017 and decree dated 19.01.2017
passed by the learned Principal Judge, Family Court, Vaishali at
Hajipur (hereinafter referred to as ‘Family Court’) in Divorce
Case No. 263 of 2016 whereby and whereunder the Divorce
Petition filed by the respondent-wife was allowed ex-parte and
the marriage of the appellant with the respondent was dissolved.
3. The facts of the case, in brief, is that the
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marriage between the appellant-husband and the respondent-
wife was solemnized on 08.02.2012 at Mumbai in accordance
with Hindu rites and customs. The marriage was a love
marriage, the parties having come into contact while pursuing
their studies at Melbourne, Australia, and was later solemnized
with the consent of their respective families. After marriage, the
parties resided together as husband and wife and consummated
the marriage; however, no child was born from the wedlock.
The respondent–wife, a medical professional by qualification,
pursued higher studies in Radiology at Ahmedabad in the year
2013 with the consent of the appellant. During this period,
according to the respondent, the conduct of the appellant
underwent a marked change, and he allegedly began neglecting
her, avoiding communication, and displaying indifferent
behaviour. It was further alleged that during her serious illness
in November 2013, when she was diagnosed with bone tumor
and hospitalized at Mumbai, the appellant failed to provide care
or support and he was not available for her when she was
struggling with her life and death. This conduct of the appellant
towards the respondent gave her mental tension. The respondent
further alleged that the appellant developed an illicit relationship
with another woman, abused her and her mother, and ultimately
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refused to cohabit or discharge marital obligations. It was
contended that the appellant deserted the respondent since
February 2014 and expressly stated his unwillingness to
continue the matrimonial relationship. Inspite of best efforts of
the respondent, the appellant refused to live with her as a
husband and wife. The respondent waited for a long time to
establish her matrimonial and conjugal rights, but the appellant
did not even made a phone call to the respondent in between.
Owing to continued neglect, alleged cruelty, and desertion, the
respondent whose health was affected badly, joined a job as
radiologist at Super Ultra-sound Centre at Hajipur, District
Vaishali, Bihar, in April 2016. In the facts and circumstances,
the respondent instituted a petition for dissolution of marriage
under the provisions of the Hindu Marriage Act, 1955
(hereinafter referred to as ‘Act’).
4. Despite the Court notice through ordinary
process as well as substituted service the appellant-husband did
not appear. Accordingly, the case was proceeded ex-parte
hearing by the learned Family Court and the appellant-
husband/Opposite Party failed to file his written statement or
adduce any evidence.
5. On the basis of pleading and submission
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advanced on behalf of the respondent, the learned Family Court
framed the issue as to “whether petitioner is entitled to get
decree of divorce from the O.P.?”
6. On behalf of the respondent-wife, altogether five
witnesses have been examined to prove her case. They are as
hereinunder:
P.Ws. Names
P.W.-1 Nandita Jagmohan Goel @Nandita (Respondent-
wife)
P.W.-2 Dr. Santosh Jagmohan Goel (Mother of the
respondent-wife)
P.W.-3 Krishna Gupta (Paternal-aunt of the respondent-
wife)
P.W.-4 Mukul Mani (Landlord of rented residence where
the respondent-wife was residing)
P.W.-5 Braj Nandan Singh (Employee of Super Ultra-
sound Centre at Hajipur where the respondent-
wife was working as a Doctor).
7. P.W.-1, Nandita, respondent-wife has deposed
that her marriage with the appellant was solemnized on
08.02.2012 and she cohabited for six months with her husband
after marriage. She stated that she has been living separately
with her husband since last three years and her husband has
some illicit relation with another woman. It is further stated that
her husband has left visiting her and has always kept her in
dark. Moreover, when she protested on the behaviour of the
appellant, he abused her and intimidated her for assault. In reply
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to the Court question, she stated that her husband is an M.B.A.
qualified and he is not doing any permanent job.
8. P.W.-2, Dr. Santosh Jagmohan Goel has
supported the case of respondent-wife and deposed that the
appellant was in illicit relation with another woman and when
the respondent-wife opposed such behaviour of the appellant-
husband, he tried to assault her. She further deposed that she has
witnessed the cruel behaviour of the appellant-husband and it is
not possible for the respondent-wife to stay in the wedlock.
9. P.W.-3, Krishna Gupta has also supported the
case of the respondent-wife and has deposed that the appellant-
husband used to misbehave with the respondent-wife and the
appellant-husband has developed illicit relation with some other
woman and it is not possible for the respondent-wife to stay in
the wedlock. Furthermore, P.W.-4 and P.W.-5 have deposed that
the respondent-wife resides in Hajipur and she works in Super
Ultra-sound Centre in Hajipur, respectively.
10. The learned Family Court, after hearing the
respondent-wife and considering the material available on
record, held that the behaviour of appellant-husband is cruel
towards the respondent-wife and the respondent-wife does not
want to live with the appellant-husband as she feels threat of her
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life. Accordingly, the learned Family Court allowed the divorce
case filed by the respondent-wife ex-parte and the marriage of
the appellant with the respondent was declared dissolved vide
order dated 05.01.2017 and decree date 19.01.2017. The
appellant being not satisfied and aggrieved by the said order and
decree filed the present miscellaneous appeal on 20.07.2021.
11. Learned counsel appearing on behalf of the
appellant-husband assailed the impugned ex-parte order and
decree of divorce primarily on the ground that notice on
appellant-husband was not validly served in view of the fact that
the appellant-husband was residing at Kolkata, and address at
Mumbai was deliberately supplied, resulting in service of
summons at a place where the appellant-husband was not
residing. According to learned counsel, the consequential
substituted service and ex-parte proceedings were thus vitiated
at their very inception.
12. It is further submitted by the learned counsel
for appellant-husband that the respondent-wife had suppressed
material facts from the learned Family Court, including the
pendency of other civil suits between the parties and the
subsequent settlement wherein both parties had acknowledged
the absence of cruelty and expressed their intention to seek
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divorce by mutual consent. It is, moreover, submitted that the
learned Family Court, being kept in dark about these
developments, proceeded to pass the decree on the ground of
cruelty despite the divorce petition having been filed under
Section 13(1)(ib) of the Act.
13. Learned counsel for the appellant-husband
referred to consent term (Annexure-2 annexed with this appeal)
and submitted that in Spl. Suit No.118 of 2016 (Nandita and
Anr. v. Vishal Gupta) vide the consent term dated 21.12.2016, it
was decided between the parties that they have mutually
decided to separate themselves by obtaining necessary decree of
divorce and the said consent term be also treated as consent
given by the parties for the purpose of obtaining necessary
decree of divorce and the respondent-wife had confirmed that
she does not have any claim of whatsoever nature against the
appellant-husband with respect to maintenance. Both the parties
had also agreed to withdraw any or all the allegations against
each other. But this fact was not disclosed by the respondent-
wife in the Family Court.
14. Learned counsel further submitted that the
allegations of cruelty were vague, unsubstantiated, and
unsupported by cogent evidence, and that the findings recorded
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by the learned Family Court were based solely on untested and
one-sided assertions. It is further submitted that the divorce
petition had been filed under Section 13 (1) (ib) of the Act i.e.,
on the ground of desertion but the learned Family Court treated
desertion as cruelty and granted decree of divorce on both
grounds which is not tenable in law. Lastly, it is submitted that
the impugned order and decree is liable to be set-aside.
15. Per contra, learned counsel on behalf of
respondent-wife submitted that the learned Family Court after
appreciating the evidences and considering the material
available on record has rightly allowed the petition for divorce
filed by the respondent-wife. It is submitted that the respondent-
wife has already solemnized her marriage subsequent to the
decree of divorce on 08.12.2017 and from the wedlock she has
been blessed with a child and she along with her family is
settled outside India. Moreover, it is submitted that the
allegations imputing fraud and impropriety in obtaining the ex-
parte order, are wholly false and misconceived, inasmuch as due
service of summons and requisite paper publication were duly
effected in accordance with law, and the appellant deliberately
chose not to appear before the learned Family Court, which is
evident from the court records. He further submitted that the law
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is well settled that non-mentioning of any provision of law
would not suffice to take away the jurisdiction of a Court, if it is
otherwise vested in it under law. In the present case, non-
mentioning of Section 13 (1) (ia) of the Act in the petition, by
itself, does not take away the jurisdiction of the Court to
adjudicate the same when there is pleading and evidence with
respect to cruelty committed by the appellant-husband. Learned
counsel further submitted that the present appeal has been filed
by the appellant-husband with ulterior motive to harass the
respondent-wife and the same is liable to be dismissed.
16. With respect to permanent alimony, learned
counsel for the respondent-wife submitted that the respondent-
wife is already settled in her life and requires no alimony from
the appellant.
17. In view of the rival contentions, the point for
determination in this appeal is “whether the decree of divorce
granted by the learned Family Court requires interference by
this Court in the facts and circumstances of the case?”
18. Living together is the essence of marriage and
living apart is its negation. The law regards the negation of the
very essence of marriage as desertion. Desertion of one spouse
by the other is recognized as ground for divorce under Section
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13 (1) (ib) of the Act. It refers to total abandonment of
matrimonial obligation. The following ingredients must be
fulfilled for desertion:-
(i) The factum of separation i.e., the
petitioner and the respondent should either
be physically or mentally separated from
each other;
(ii) Animus deserendi i.e., an intention to
permanently desert the spouse;
(iii) Desertion should have been without any
reasonable cause;
(iv) It should have been without the consent
of the spouse; and
(v) It should have been for a continuous
period of two years, immediately preceding
the presentation of the petition in Court.
19. Desertion is not withdrawal from a particular
place, but it is withdrawal from a particular state of things i.e.,
cohabitation. It can be asserted that desertion is a continuing
course of conducts and not a single act. Desertion is deemed
complete when the period prescribed in law expires, and a
petition for remedy is filed on its ground. However, if the
deserter returns before the expiry of the prescribed period, the
desertion stands terminated.
20. Moreover, on the point of mental cruelty, the
Hon’ble Supreme Court in Rakesh Raman v. Kavita reported in
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(2023) 17 SCC 433 observed that the long separation, absence
of cohabitation and complete breakdown of all meaningful
bonds and the existing bitterness between the two, has to be read
as cruelty under Section 13 (1) (ia) of the Act. The Hon’ble
Apex Court further held that:
“26. This Court in Samar Ghosh v. Jaya
Ghosh, (2007) 4 SCC 511 though did
ultimately give certain illustrations of mental
cruelty. Some of these are as follows:
101. No uniform standard can ever be laid
down for guidance, yet we deem it
appropriate to enumerate some instances of
human behaviour which may be relevant in
dealing with the cases of “mental cruelty”.
The instances indicated in the succeeding
paragraphs are only illustrative and not
exhaustive:
(i) On consideration of complete
matrimonial life of the parties, acute mental
pain, agony and suffering as would not make
possible for the parties to live with each
other could come within the broad
parameters of mental cruelty.
****** ****** ******
(xii) Unilateral decision of refusal to have
intercourse for considerable period without
there being any physical incapacity or valid
reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband
or wife after marriage not to have child from
the marriage may amount to cruelty.
(xiv) Where there has been a long period of
continuous separation, it may fairly be
concluded that the matrimonial bond is
beyond repair. The marriage becomes a
fiction though supported by a legal tie. By
refusing to sever that tie, the law in such
cases, does not serve the sanctity of
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marriage; on the contrary, it shows scant
regard for the feelings and emotions of the
parties. In such like situations, it may lead
to mental cruelty.”
(emphasis supplied)
21. The Hon’ble Supreme Court in Amutha v. A.R.
Subramanian reported in 2024 SCC OnLine SC 3822 has
observed in para 34 as under:
“34. ………..In matrimonial disputes, this
Court has emphasized the need to prioritize
welfare and dignity of both parties. Forcing
a marriage to continue when it has become a
source of unhappiness and conflict
undermines the very purpose of the
institution of marriage..……”
22. Having considered the pleadings, evidence on
record, and the submissions advanced on behalf of the parties,
this Court finds no illegality, perversity, or material irregularity
in the impugned ex-parte order and decree passed by the learned
Family Court. Also, sufficient opportunities were afforded to the
appellant-husband to appear and contest the proceedings, and
the learned Family Court proceeded ex-parte only after being
satisfied about proper service in accordance with law.
23. We have closely examined the entire facts of
the case which are present before us. In the instant case, the
marriage between the parties was solemnized in the year 2012
and subsequently, after six months, the conjugal relationship
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between the parties has been snapped. There is no child born out
of their wedlock and the matrimonial bond between them has
been completely broken. The respondent-wife filed the divorce
case in the year 2016 wherein the learned Family Court
considering the facts and circumstances of the case, the conduct
of the appellant-husband towards the respondent-wife and
desertion by the appellant for a long period which also amounts
to cruelty, granted the decree of divorce. Admittedly, both the
parties have been living separately since long and forcing a dead
marriage to continue, undermines the very purpose of the
institution of marriage and serves no interest. In the present
case, the interest of both the parties are best served by allowing
both the parties to move on with their lives independently.
24. At this stage, we are conscious of the
subsequent developments in the life of both the parties. The
respondent-wife has already got re-married on 08.12.2017 and
has been blessed with a child from the wedlock. Both the parties
are well-educated and settled in their life. They had already
decided to take divorce on 21.12.2016 which is evident from the
consent term between them. There was a complete breakdown
of marriage due to a long period of separation and the
matrimonial bond between the parties has reached to the stage
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of beyond repair and the continuation of the same would amount
to cruelty on both sides. In the facts and circumstances as exist
today, we are convinced that the impugned order and decree of
divorce granted by the learned Family Court requires no
interference by this Court in this Miscellaneous Appeal.
25. Consequently, this Miscellaneous Appeal stands
dismissed and the decree of divorce is upheld.
26. Pending I.A(s)., if any, stands disposed of.
27. There shall be no order(s) as to costs.
(Sunil Dutta Mishra, J)
(Nani Tagia, J)
Ritik/- (Nani Tagia, J)
AFR/NAFR NAFR
CAV DATE 22.01.2026
Uploading Date 06.02.2026
Transmission Date NA
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