Kailash Chandra @APPELLANT@Hash Smt. Laxmi

The appellant presented a petition seeking divorce on ground of desertion for a period of two years preceding the date of presentation of the petition

without reasonable cause by the wife as well as cruelty. The petition was filed on 20th October, 2010.

It was pleaded that the marriage between the couple was solemnized as per Hindu customs on 18.6.1998. Each year the respondent would visit her

parents and stayed with them for upto a month. Her endeavour was to live with her parents rather than the appellant. In December, 2004 she left for

her parental house taking with her the jewellery. Attempts made towards

reconciliation failed. On 24.5.2009 the appellant sent a notice to the respondent through a lawyer requiring her to join consortium.

Inspite of service she did not join back. During reconciliation the respondent would threaten to commit suicide if she was forced to join the appellant.

The allegation of threatening to commit suicide was by way of mental cruelty committed by the respondent against the appellant.

In the written statement filed the respondent denied the assertions and pleaded that the cause for her to leave the matrimonial house was she being

troubled on account of bringing inadequate dowry. She pleaded that she was physically beaten for not bringing dowry. A preliminary objection

concerning territorial jurisdiction of the Court was also pleaded. The respondent desired an alimony to be fixed in her favour.

On the pleadings of the parties five issues were settled. The first was whether the respondent had without reasonable cause deserted the appellant

for a period of two years preceding the date of presentation of the petition. The second was whether the respondent had committed acts constituting

mental cruelty. The third was whether the Court had territorial jurisdiction. The fourth was whether the respondent was entitled to restitution of

conjugal rights and the fifth was to what alimony the respondent would be entitled to.

Counsel state that the 4th issue was redundant and be ignored.

After evidence was led vide impugned decision dated 12th February, 2014 the petition seeking divorce has been dismissed. On the issue of

territorial jurisdiction the appellant succeeded. On issue No.4 the finding returned is that the respondent is entitled to the restitution of conjugal rights.

It needs to be highlighted at this stage that after the appellant sued for divorce the respondent filed a complaint against the appellant for having

committed offence punishable under Section 498A IPC which resulted in the appellant being tried and acquitted on 17th February, 2014. The said

decision has obviously been rendered after the impugned decision dated 12th February, 2014 was pronounced.

As usual in matrimonial cases the appellant and the respondent deposed facts as per their pleadings and their witnesses supported them.

The allegation of mental cruelty by the appellant i.e. of the respondent threatening suicide, as conceded by learned counsel for the appellant, has

remained a mere statement without specifying the dates on which the respondent threatened to commit suicide.

Since the only fact of mental cruelty pleaded is the threat of suicide, the impugned decision in so far as it returns a finding that the appellant has

not established mental cruelty is affirmed.

On the issue of desertion, the learned Judge, Family Court has highlighted that during cross-examination the appellant stated that he was not willing

to live with the respondent and therefrom has concluded that it was the appellant who was the cause for the respondent to leave the matrimonial

house.

The said finding over-looks the fact that by the time parties recorded evidence the respondent had lodged a complaint against the appellant

for an offence under Section 498A IPC and he was facing a trial and it was in this context he stated that now he is not ready to live with the

respondent.

The error in the impugned judgment is that the learned Judge, Family Court has not proceeded to analyze the requirements of law concerning

desertion with reference to the evidence.

The factum of the respondent leaving the matrimonial house in the year 2004 was admitted by her. She pleaded a justifiable cause to withdraw

from the consortium in the form of alleging harassment on account of dowry.

Thus, the sufficient cause for withdrawing from the matrimonial house was on the respondent.

Neither in her testimony could she give particulars of the dates when she was harassed on account of dowry nor could her witnesses do so. The

learned Judge, Family Court has over-looked said facts.

The learned Family Court did not have the benefit of the decision dated 17th February, 2014 in which the appellant has been acquitted, for the

reason the impugned decision was pronounced on 12th  February, 2014. But we have the benefit of the decision acquitting the appellant.

From the fact that the respondent lodged a complaint for dowry harassment in the year 2011 after she was served with a notice in the petition

seeking divorce filed by the appellant, we have proof of the fact that she retaliated. She never made a complaint to any authority that her husband was

committing acts of cruelty against her on account of a dowry demand.

Thus, the respondent has failed to establish a sufficient cause to withdraw from the consortium.

In our opinion, case was made out to grant decree of divorce to the appellant under Section 13(1)(i-b) of the Hindu Marriage Act, 1955.

The appeal is allowed granting decree of divorce and as a result of annulling the marriage under Section 13(1)(i-b) of the Hindu Marriage Act,

1955. Impugned judgment is set aside to said extent. Alimony awarded to the respondent-wife is maintained.